Official Report: Minutes of Evidence

The Chairperson (Ms Bunting): I welcome to the meeting the departmental officials, Maura Campbell, who is the senior sponsor of the Bill; Andrew Laverty, the Bill manager — this is like 'The Price is Right': "Come on Down!" — Lisa Boal from the reducing offending division; Veronica Holland, deputy director of the rehabilitation and reducing reoffending directorate; Therese Murphy from the policing HR and pensions division; Emma Crozier, head of the violence against the person branch; Steven Allison, head of the enabling access to justice division; Patricia Kerr, AccessNI; and Clare Irvine from the civil justice and judicial policy division.

Folks, you are all welcome. Thank you. I will hand over to you to give your initial presentation, and, if you are content, we will then work through each Part of the Bill one at a time so that we are a bit more structured rather than jumping from Part to Part. Many of you we know, and I thank those whom we do not for taking the time. You are welcome, and, hopefully, you will enjoy your time with the Committee today.

Ms Maura Campbell (Department of Justice): Thank you very much, Chair. Good afternoon. We are grateful for the opportunity to brief the Committee today on the principles and content of the Justice Bill. As you said, I am the senior sponsor for the Bill, and Andy, who is beside me, is the Bill manager. Because the content is so wide-ranging, we are joined by colleagues who are the policy leads for the various provisions. Thank you very much for working with us to structure the meeting in such a way that we can hear from everyone. I do not intend to speak for long at the start, because we are aware that you will have plenty of questions for us, and we want to ensure that we can cover as many of those as humanly possible in the available time.

The Justice Bill, as introduced, has four key principles: to amend retention periods for biometric material; make changes to bail and custody arrangements for children and young people; improve services for victims and witnesses; and improve the efficiency and effectiveness of aspects of the justice system.

Part 1 provides for the development of a framework for the retention of biometric material, including DNA and fingerprints so that such material will no longer be kept indefinitely and will be subject to review. Part 1 also allows for the appointment of a new commissioner to oversee the framework and the review process. The changes respond to rulings by the European Court of Human Rights (ECHR) and seek to strike a careful balance between protecting an individual's right to privacy on the one hand and, on the other, protecting the public through making effective use of biometric material in the prevention and detection of crime. It is a complex and technical area, and I should make members aware that a need has already been identified to make some amendments to this Part of the Bill during its passage to ensure that provisions operate as intended. We are happy to say more about that if members wish.

Part 2 makes changes to existing legislation on bail, remand and custody for children with a view to enhancing compliance with the United Nations Convention on the Rights of the Child (UNCRC). It strengthens the existing presumption of bail for children by introducing unconditional bail as standard and requiring that any conditions that are applied should be proportionate and necessary. It also introduces specific conditions that must be met before a child can be remanded into custody. Finally, it places in statute the current arrangements for separating children and adults in custodial settings.

Part 3 concerns the use of live links for police detention and interviews so that they can be dealt with more swiftly and efficiently. That would bring Northern Ireland into line with existing practice in England and Wales.

Part 4 contains a raft of changes relating to policing, criminal proceedings, legal aid, criminal record certificates and court security. I do not plan to go into detail on each of those now, but there is a brief overview of all those provisions in the written briefing, and further details are available in the explanatory and financial memorandum (EFM).

That is a quick run through the content of the Bill as introduced. In addition to the provisions that you have before you, as members will be aware, we plan to bring forward additions to the Bill. They include provisions for the wider use of live links in courts and tribunals; to modernise and reform rehabilitation periods; to restart the accreditation process for organisations that wish to deliver restorative justice services; to repeal outdated vagrancy laws; to streamline arrangements for maintaining the list of offences that cannot be filtered from disclosure certificates by AccessNI; and to tackle those who direct or participate in serious organised crime.

While it is not unusual in this Department to bring forward additional content during the passage of large, mixed-content Bills, we understand and appreciate members' concerns, so we still aim to give you sight of the proposed amendments as soon as possible, rather than waiting until we are closer to Consideration Stage.

We said in the written briefing that we anticipated that all draft text would be available by the end of the calendar year. However, the drafting of some of the amendments is now at an advanced stage, so, if the Committee is content to take receipt of the amendments in tranches, we should be in a position to start sharing new content with it very soon.

I will pause there. We are happy to take questions.

The Chairperson (Ms Bunting): Thank you very much, Maura. The first thing that I want to say is that you guys have been working on the Bill for a considerable time, but we have not. We are not as au fait with it as you are, and we are still working our way through it. If we raise issues that may be in it, you will need to bear with us, because it is really important that we understand the principles of the Bill and what it will do and seek clarification where we need to. If those questions perhaps appear unnecessary to you, please remember that you are much more experienced in this than we are, and we are coming to it only since last Tuesday, so we will need some time.

I will open the Floor. Does anyone have any general questions first?

Mr Bradley: I have just one. Will the amendments that you are bringing later cross-reference some of the work that we have already done on Parts 1, 2, 3, 4 and 5?

Ms Campbell: I do not think that they will, no.

Mr Andrew Laverty (Department of Justice): There is no direct crossover, with the exception of the AccessNI disclosure provisions in Part 4. One of the amendments involves AccessNI's management of a scheme that allows old and minor convictions to be filtered from criminal record checks. There is a common policy area there, but it is not directly linked to the Bill's earlier provisions. Similarly, the live link provisions in Part 3 are directly related to police interview and custody provisions and the live link provisions that we intend to bring forward as amendments. Those are for the wider use of live links in more criminal and tribunal settings. There is the same infrastructure framework, but it is for different purposes.

Ms Campbell: Those provisions will be for courts and tribunals, including criminal and civil business.

Mr Laverty: Yes.

Mr Bradley: Given your answer, will duplication be minimal?

Mr Laverty: There should not be any direct duplication.

Mr Bradley: The other thing is the time that we will have to scrutinise the amendments when they come forward. Will there be enough time for us to do our job effectively?

Mr Laverty: Without wishing to pre-empt or anticipate the length of time that the Committee Stage might run, with the benefit of some experience of previous Justice Bills, we know that Committee Stages tend to be lengthy. We hope that we will be in a position to share the majority of the text with you in a number of weeks rather than months. Given that, I imagine, the Committee Stage is likely to run quite far into next year, we hope that you will have ample opportunity to scrutinise the amendments.

Mr Bradley: Thank you very much.

Miss Hargey: I want to follow on from that, and thanks very much. The Bill is sizeable, and that includes the amendments that will come later. I do not want the Department to take it that, because we will take time to carry out our scrutiny of the Bill, particularly on the back of the court case through the judicial review (JR) and the human rights implications, it can take its time bringing forward the other six areas.

We met before the summer, and we were told that the Bill would be ready in the autumn. We are now being told that that could happen at Christmastime, so could it be pushed out to January? I would be keen for the Department to present in particular the six areas that will be brought at Consideration Stage. Will you confirm whether that will happen in a few weeks' time? When will each of the six areas come forward, and how will they be set out? What will be available and when? Can we have a timetable of when those will be available?

As the Chair said, you have had time to go through the Bill. Even though we, as a Committee, will take a bit longer, we still do not have that much time. We want to make sure that the mistakes of the previous legislation are not repeated, because it is too serious, particularly given the issues that are in the Bill. We are keen to give it the proper scrutiny, so I am eager to have a proper timetable showing when the amendments are likely to come. I am keen for the Department to give as much information as possible at this point, rather than wait and put it all in at once.

Ms Campbell: When we previously spoke to you, we were planning on the basis that the Bill might be introduced in June: it was introduced in September. Until that point, the focus was on preparing for the Bill's introduction, but the Office of the Legislative Counsel (OLC) has been working really well with us to get the amendments drafted as swiftly as possible. If this assists you, maybe we can indicate the order in which, we think, they will come to you. We can give a rough indication at this point, or we can follow up in writing, if you prefer.

Miss Hargey: You can give us that now, if you want, but it would be good if it could come in writing. Obviously, the 30-day countdown for us to consider how much time we will take will start on Tuesday at Second Reading. I want the Committee to have as much detail as possible, because that will determine how much time the Bill will take. That would be useful.

Mr Laverty: The Committee may find it helpful for us to run through the sequence. Obviously, we have been modelling the Bill's timetable quite a bit, and it has changed considerably since the Bill was conceived. Maura, you might want to speak to that.

Ms Campbell: We have seen the clauses, so there is just a bit of finessing to do at this stage, and final queries have been addressed. The most advanced areas are probably the rehabilitation of offenders provisions, which, I know, the Committee was keen to see, and the community-based restorative justice provisions, which will, hopefully, be ready very soon. Final queries on the biometrics amendments have now been addressed, but that was just finessing the content that is in front of you.

The Chairperson (Ms Bunting): Sorry, may I interrupt for a second? In response to Maurice's question, you indicated that amendments were being brought on two areas, but you now tell us that you will also bring us amendments on biometrics.

Ms Campbell: Chair, I said in my opening remarks that we had identified a need for some amendments on the biometrics provisions. I am sorry; we should have said that when Mr Bradley asked the question. We had the additional policy content in our mind. The amendments to the biometrics provisions will relate to the provisions in the Bill as introduced. I should have clarified that.

The Chairperson (Ms Bunting): Essentially, we have had the Bill for nine days, and already there are amendments.

Ms Campbell: Yes.

Mr Laverty: Lisa can talk to the detail of the need for the amendments. They came from the Department's stress-testing of the provisions with operational partners when the drafting of the Bill was considered complete. As you will understand, I am sure, it was only when we started to go through the minutiae of the information ourselves, given the breadth of the biometric provisions, that it became clear that there were some issues. I will not pretend to understand them; Lisa can talk about the detail. The policy intent has not changed, and it is not that significant new policy content is being added. When you look at the Bill, you will see the number of pages that the biometric provisions extend to. The amendments are being designed to ensure that those provisions operate as intended, rather than to change the legislation as it is presented to you. It is not a change of approach.

The Chairperson (Ms Bunting): I think that we understand that, Andrew. Doubtless we will come back to that. I do not want to interrupt members' questioning. However, the Committee expressed grave concern to the Department about holding the Bill until the Department was ready, but the Bill has been introduced, we have had it for nine days, and it is changing already.

Our view has always been to say, "Let's do this. Let's take the time to get it right", particularly in the aftermath of a damning judgement of the Department, the Committee and the Assembly as a whole. It is disappointing, to say the least. We warned of that, and we cautioned the Department not to bring the Bill until it was ready, but, from what you say, we already have examples to show that it is not. That is concerning. Nevertheless, we will proceed in as constructive a manner as possible. Please proceed.

Mr Laverty: Our expectation is that the three additional policy content areas that Maura has just summarised should be available to be shared with the Committee by the end of October.

The Chairperson (Ms Bunting): Does that mean that rehab of offenders, restorative justice and biometrics will be available at the end of October?

Mr Laverty: Yes.

The Chairperson (Ms Bunting): Do you have a time frame for the rest of them, as Deirdre was asking?

Ms Campbell: After that, the filtering provisions are probably the next ones that you are likely to receive. That is the streamlining of the non-disclosure of criminal records information. After that, it will possibly be the serious organised crime provisions, followed by live links and vagrancy. It is a bit more difficult to predict precisely the order of those later ones, but we hope that some of them will be available by November.

Mr Laverty: We hope that the filtering in the serious organised crime provisions can be shared in November. The live links provisions are the biggest set of instructions that we have prepared. They are 138 pages long and have issued to OLC. We imagine that drafting those and the repeal of the vagrancy legislation will take a bit more time. Those are the two that, we expect, will take until the end of the calendar year.

The Chairperson (Ms Bunting): Who would have thought, with it being 138 pages?

Mr Laverty: There are a lot of plates spinning at the same time, Chair.

The Chairperson (Ms Bunting): Indeed. At least you are being upfront about it.

Ms Campbell: It is 138 pages minus attachments, so it is significant.

The Chairperson (Ms Bunting): It seems to almost merit a Bill in itself.

Deirdre, apologies; I interrupted you there. Please carry on.

Miss Hargey: If we can get that in writing, that would be good.

Ms Campbell: We are happy to keep the Committee updated if there are changes.

Mr McNulty: Thanks, folks, for your evidence thus far. We have been told that this is the largest and most complex Bill to come before the Assembly in the mandate. This has been touched on, but how confident are you about legislators' ability to properly scrutinise the Bill in the proposed timeline for its passage through the Assembly?

Ms Campbell: The Department will not prescribe the length of time that the Committee will have to scrutinise the Bill; obviously, that will be a matter for the Committee. We certainly expect the Committee to take the time that, it feels, it needs to properly scrutinise the provisions.

To be honest, we welcome that scrutiny, because we want the legislation to be future-proofed. We do not want to have to come back to you in a year or two seeking to revisit any of those policy areas. We are happy to work with the Committee in any way that it would like in order to facilitate that scrutiny.

Mr Laverty: If I might add to that, we were conscious after the previous mandate that we progressed a lot of information in an even shorter time than we have in this mandate. We carried out a lessons-learned exercise with the previous Committee, and, as part of the lessons that were learned for this mandate, working with the Office of the Legislative Counsel and the TEO legislative programme board, we have limited ourselves to bringing forward one Bill per calendar year of this mandate.

This is a big Bill, but it is by no means the biggest justice Bill that we have brought, and I would not necessarily say that it is likely to be the most complex, because the sentencing Bill that is due to follow this Bill will require some careful scrutiny as well. Being conscious of that, we have sought to limit the Department's aims for this mandate to one Bill per Assembly year.

Mr McNulty: The explanatory and financial memorandum notes that the outworkings of the Bill as a whole will be delivered primarily from existing resources, with some areas requiring approvals. What does that look like, given the extremely challenging budget settlement that organisations such as the police have received? Given that there is a specific focus on the victim's experience and their trust in the justice system, how do you see that being impacted by the passage of the Bill, by its being legislated for and the resources that are available to implement the outworkings of the Bill?

Ms Campbell: It will depend on the policy area. Different policy leads have been engaging with stakeholders about the potential impact and consequences of the Bill. It might be better to address that as people come to the table, and colleagues who are at the table may want to say something about their provisions. A number of the provisions will not have cost implications, but there are a few that will. I will ask Veronica and Lisa to speak to their aspects of the Bill.

Dr Veronica Holland (Department of Justice): No material costs are associated with the bail and remand provisions. Some relatively small technical changes that relate to IT changes are needed. The cost associated with those changes is a few thousand pounds. No material costs are associated with introducing those provisions. A lot of the changes will be to current processes and how things work, as opposed to those that would need substantial new expenditure by the relevant organisations.

Ms Lisa Boal (Department of Justice): We expect the changes to live links to be able to be made from within existing resources and using the IT infrastructure that the PSNI already has. A cost will be involved in setting up the office of the biometrics commissioner. We will work through that as part of our normal budgeting process. Implementation will have resource implications for the PSNI in putting in place the software and systems that it needs to support that. The police are still working their way through it, and we are in the early stages of conversations with them about planning and systems for implementation and the costs that that will involve. We will work through that.

Mr Laverty: I will add this for Mr McNulty's benefit. We have had an approach from the Assembly's Research and Information Service (RaISe), which has posed a number of questions about specific financial aspects of the Bill. We have responded in detail to those questions, and I expect that you commissioned that work from RaISe. We are happy to have provided that information, and, if there is anything further on the financial aspects that we can assist with, we are more than happy to share that detail.

The Chairperson (Ms Bunting): Andrew, I do not know whether we have the document to which you refer, but the stuff that we have on finances at this point is fairly scant.

Justin, do you want to come in again, or are you finished?

Mr McNulty: Yes. I have one more question. I am not sure if it should be directed at the witnesses in this part of the meeting. Why are there Henry VIII powers in clause 31, and what is the justification for their inclusion? How does the Department anticipate those powers being used?

Mr Laverty: The Henry VIII powers in clause 31, which is headed "Further provision", are much more limited than they were. Such powers in justice Bills allow the Department to make remedial amendment to primary legislation by means of secondary legislation if and when it becomes apparent that there has been an error in drafting or an unintended consequence of a provision of the Bill for another piece of legislation. The Justice Committee in 2014, I think it was, put particular focus on the continued use of those powers, so they are limited to the bare minimum that allows the Department to fix any issue with the legislation if an issue becomes apparent. It is not an overarching power that grants the Department the power to do anything that it wishes.

In keeping with working in the devolved frame, any secondary legislation that is brought forward under clause 31 would require Assembly debate and would be subject to affirmative resolution on the Floor, so the Committee and other Members would have their opportunity to consider and comment on the proposals.

Mr McNulty: Thanks, folks.

Ms Ferguson: I have two questions, and one of them follows on from Justin's. What are the compelling reasons for using the Henry VIII powers in clause 31?

Mr Laverty: I am a man of a certain age, and my memory is not exactly what it was. If it pleases the Committee, we can certainly set out in writing the intention and background of those Henry VIII powers, although describing them as "Henry VIII powers" gives them a sense of importance that they no longer carry. We will certainly set that out for you in more detail, and we will do that in writing.

Ms Ferguson: Thank you.

Ms Campbell: To give a practical example, we are carrying provision in the Bill to make a tweak that was spotted as being needed to rectify something in legislation from 2002. There is no provision in regulation to address the issue, so we have to use primary legislation. Ultimately, it is intended for making better and more effective use of parliamentary time.

Mr Laverty: Better use of the Assembly's time.

Ms Campbell: If there is a small, technical change, that is a quicker and easier way to address it than having to seek further primary provision.

Ms Ferguson: It is just that the information that we have received so far says that it can be used only when there are compelling reasons. I just wanted to get clarity.

Mr Laverty: We will certainly do that.

Ms Ferguson: Thank you. We will appreciate the written response.

What plans exist for further engagement on the provisions that are currently in the Bill and for the future amendments that we discussed?

Mr Laverty: Engagement with?

Ms Ferguson: With people.

Mr Laverty: With stakeholders. Each of the amendment areas has been subject to public consultation exercises, with the possible exception of the vagrancy provisions that are being considered. There is ongoing engagement with key stakeholders when policy is being developed, being finalised and being turned into legislation.

Under the Assembly route, the Committee's call for evidence is the opportunity for stakeholders and members of the public to come forward with any further concerns or considerations that they would like the Committee to address about the Department's final policy position as it is reflected in the legislation. That is not to say that we are not available to stakeholders or that we are not open to having workshops or anything else that might help them with any concerns or uncertainties that they have about the legislation. There is nothing proactively planned, but we do not consider this to be a closed document with no opportunity for further changes.

Ms Ferguson: Does that mean that there is no further engagement to the engagement to date that has been outlined in our paper?

Mr Laverty: I can speak only in terms of the —.

Ms Ferguson: You mentioned that it is ongoing. It would be useful to know what the ongoing engagement has been.

Mr Laverty: Sorry, I am perhaps confusing things. I am talking in an overarching sense about the Bill as a consolidated piece. There is ongoing stakeholder engagement with key stakeholders and operational partners on each policy area. That does not stop once the legislation is drafted.

Ms Boal: I will give biometrics as an example. If the Assembly approves the Bill, we will have to introduce various pieces of subordinate legislation to give effect to parts of the legislative framework. We will consult on the various sets of regulations that we will have to make, and updates to PACE codes will be required for biometrics and live links. Again, there will be consultation on all that. We continue to engage with stakeholders as we work through the detail of the subordinate legislation.

Ms Ferguson: Are there any areas that, you feel, there could be further engagement on, if you had more time? I am conscious of dates. There were eight weeks of public consultation on retention of DNA and biometric material. That closed in August 2020. We are now moving into late 2024-25, which is four or five years later. That is just one example of —.

The Chairperson (Ms Bunting): Of course, that is not the only problem with that consultation. It was an eight-week consultation rather than a 12-week consultation, it was done in July and August and it was done in the summer of COVID.

Ms Ferguson: That is what I am trying to get to. Are there any plans to carry out intensive and up-to-date consultation with stakeholders across all the provisions in the Bill as we go through the Bill process?

The Chairperson (Ms Bunting): We will do that.

Ms Ferguson: I know that we will, but will the Department?

Ms Campbell: As Andy says, different policy areas will look at what is required for their areas. For some areas, such as live links in courts and tribunals, we have certainly been engaging regularly with the likes of the Human Rights Commission and the legal professions on those and other areas of the Bill that they have an interest in. As we say, we are open to continuing to discuss it with people, but it has been more about clarifying how we are moving ahead following those consultations and giving a bit more detail on the policy approach, as opposed to trying to revisit the overall policy in a lot of those areas.

Dr Holland: It is probably fair to say that, for a number of areas, there continues to be engagement with stakeholders and interested parties more generally. As part of that, there will typically be updates on where the legislative provisions are or if anything is being looked at further. For example, we had a meeting with a wide-ranging group of stakeholders not that long ago at which there was ongoing discussion and engagement on where the young people's provisions are and what next steps are planned for them. The Northern Ireland Commissioner for Children and Young People (NICCY) is also meeting the Minister next week, for example.

For a number of the policy areas — obviously, I cannot speak for others — there continues to be engagement with stakeholders through updates on progress on them or on particular areas that they may be interested in on the work that is being taken forward more generally as well as specifically on the Bill.

Ms Campbell: Some stakeholders have mainly been wanting updates on likely timelines for planning purposes so that they can prepare for the Committee's call for evidence, for instance.

Mr Laverty: It is fair to say that the ongoing lines of communication that we have with interested groups and operational partners are about wanting an update on where we are with the delivery of the legislation, rather than wanting to revisit the policy approach. I can say with a fair degree of confidence that we have not been approached by anyone to say that the Bill is flawed, that it should not be progressed and that we should revisit and reconsult on any of the provisions that are there at the moment. If that were to arise, the Department will certainly look at it, but that is not the space that we are in.

Ms Ferguson: Thank you for that, and, obviously, we appreciate the ongoing engagements. Just finally, will you confirm that there will be no further public consultations on any of the provisions?

Ms Campbell: Andy mentioned that we plan to consult on vagrancy. The reason why we have not done so already is that, ordinarily, you do not consult on straight repeals if you are repealing because something is being replaced. We wanted to take a bit of time to look at whether we needed to make replacement provision, and the discussions on that have taken a bit longer than we anticipated. In the end, the Minister has decided that she does not consider that there is a need to replace the legislation that is being repealed. While, strictly speaking, I do not think that there is a duty on us to consult on that, we feel that it would be prudent to do so, so we plan to have a consultation on that later in the autumn.

The Chairperson (Ms Bunting): Deirdre, you wanted in again.

Miss Hargey: Yes. This point is on the back of that. It is about consultation, engagement and feedback but more about convention rights and whether the Bill is compliant. It says in the EFM that it is compliant, but, obviously, given the High Court judgement where the EFM was criticised and, as the Chair said, Committee scrutiny was criticised on certain articles pertaining to convention rights, has there been screening since you submitted the Bill? Obviously, the legal judgement was after that date. What additional screening has taken place on compliance with convention rights across all the provisions?

From the data right through to live links, even on consultation responses, concerns have been raised. Is there an ongoing and structured engagement with the Human Rights Commission? Does it have the resources to even respond to requests that you have made, or has it raised concerns about that as well? I know that resourcing for the commission is an issue. I just want to be satisfied about how robust the Department has been on the back of that court judgement, even though the Department was going to appeal it. On the back of that court judgement, what additional screening work has been done on convention rights throughout the Bill and on anything that is forthcoming? What has been the level of engagement with the Human Rights Commission about those matters?

Ms Campbell: Thank you. I met the commission recently. I cannot remember the exact date, but we have been having ongoing engagement with it.

We have had a couple of meetings to keep the commission updated on where we are with the Bill and its proposed content and so that we might have the opportunity to discuss with it in more depth some of the areas in which there is a particular issue with the balancing of rights. In our engagement to date, the commission has not flagged a concern to me.

I note what you say about the recent JR. We now also have the Court of Appeal judgement from last Friday, which looked at the impact of the Windsor framework. We will revisit that to satisfy ourselves that, in balancing rights in a number of areas in the Bill, there is no diminution of rights, in line with what the court said. It is a huge judgement. I think that it took nearly two hours to read out in court. Bigger brains than mine are analysing it to make sure that we understand its ramifications.

We are due to meet counsel, hopefully in the next week or two, to talk through the implications of that legislation. We are therefore very alert to the issue, because, as tends to be the case with justice legislation, we are often talking about balancing competing rights. It is not an exact science. We have to pay particular attention to where legislation could impinge on people's rights. We look at that issue carefully as a matter of course, but, in light of recent legal judgements, we are looking particularly carefully at it.

Miss Hargey: If you have an update, I would be keen to get a submission from you that states either that further work needs to be done or that you are satisfied.

One of the criticisms in the JR, which then fed into the consultation, was that a group of respondents had been left out. Their human rights had been impacted on by the previous legislation. Are we being robust enough in our engagement to ensure that there are no gaps in this legislation as it passes through the Assembly?

The biometrics issue, which, I know, we will get into, is an evolving space. I am thinking about future-proofing the legislation or amending it. There have already been amendments on the basis of some of your ongoing engagement. What might that issue look like over the next period, particularly for convention rights? As a Committee, we will look to get additional legal opinion on the matter, but, once you have done it, I am keen for you to share your assessment with the Committee. That would be good.

The Chairperson (Ms Bunting): It is my turn now. I will pick up on a couple of things that were said, after which I have a couple of my own questions.

Andrew, you indicated that, to your mind, the intention is for the Henry VIII clauses to be used in a fairly narrow sense. The drafting of those clauses, however, permits the Department to take whatever powers it may want. We have concerns about that. The intent for now may not be borne out in practice a number of years down the line. We therefore want to explore that further. We will await the verdict of the Examiner of Statutory Rules on that one.

I turn to finances. I appreciate that Andrew outlined how RaISe was sent a more detailed piece of work that the Committee has not yet received. The information that we have is fairly scant, and a lot of it says, "We are costing this. We are moving through it. We are still working on it". That is why I am greatly concerned. If a lot of the stuff has not been nailed down a bit more, how can the Department state in the EFM that everything will be paid for within existing resources?

After you leave today, the Committee will receive a briefing from the Department on the budgetary pressures and the October monitoring round. I know from our papers for that meeting that there is memo to the Minister of Finance that indicates that, without additional provision, services will have to be cut. It is therefore difficult for me to understand how the EFM can state that what the Bill provides for can be paid for within existing resources, when we know that the Department, because of financial pressures, is already not able to deliver what it is charged with delivering and, moreover, that a memo is going to the Minister of Finance stating that the Department will have to look at making service cuts. I want you to address that.

There is another thing that I would like you to address. In the answers that we got on the Bill's financial effects, there was reference to "subsequent business cases". For members' benefit, paragraph 9 states:

Again, the difficulty with that is this: at what point will those business cases be made? Will it be when we have already passed the legislation? I am not clear of the running order here when it comes to horses and carts. We would like some reassurance on those issues.

Mr Laverty: When it comes to the Department's legislative programme, there is an initial commissioning exercise, whereby the legislation steering group in DOJ seeks that all the Department's directors bid for the inclusion of their primary legislation needs for the mandate. After noting the time that is available in the mandate and looking at the objectives in the draft Programme for Government and at public statements that have been made about priorities, the legislation steering group will start to work its way through the returns that it gets to that commissioning exercise in order to create an initial programme, with potential provisions grouped into what is generally one mixed-content justice Bill a mandate. We tend to try to maintain other Bills as single-topic Bills or Bills that are restricted to one or two discrete policy areas.

For a mixed-content Bill such as this, the steering group's secretariat approaches all the policy areas that have been provisionally identified for inclusion in the Bill. It has to make a further, detailed submission that sets out the financial implications of its provisions, details of the screening exercises that have been carried out and details of whether there have been any negative responses, any objections or anything else that has been considered to be particularly contentious about the provisions in conversations with the Committee, stakeholders or the media. All that information comes back to the steering group so that it can decide, on the basis of affordability and priority, on the grounds of the state of readiness not just in the Department but for future implementation. That is where the distinction around some aspects of the financial elements can arise, because it is about what can be delivered as a whole without receiving any future moneys.

There are then also discrete areas. The Bill's provisions create a framework that does not have a financial cost attached to it, but, when the detail of the provisions is implemented, including through secondary legislation, the setting up of bodies and whatnot, that is when the subsequent business cases need to be looked at.

I am good with legislation but much less good with the details of the Department's financial records. There is a distinction to be made between what is considered to be a financial requirement for the delivery of the framework part of the Bill and the subsequent secondary legislation, full implementation and the operating costs that follow. That is as simple an explanation as I can give, but my explanation is not particularly simple either.

The Chairperson (Ms Bunting): It is fine, but for the EFM to state that the Department will be able to manage this is, honestly, a bit of a stretch. I appreciate what you say about secondary legislation, but, in the Bill, there is mention of a Commissioner for the Retention of Biometric Material. Funding for that role is not coming out of your existing resources.

We will want to probe areas further. As the Bill progresses and the Committee takes evidence, we will undoubtedly hear more. It is important for us, as we approach Second Stage, to have some concept of where you are with finance and what the EFM means and for us to put a few of our bits and pieces on the record.

That is all that I have by way of general questions on finance. Members, time is marching on. I propose that we move on to the Part on biometrics.

Without further ado, does anybody have any questions about biometric data?

Mr Dunne: Thank you, folks, for the presentation. Is the 75/50/25-year model in use anywhere else globally, or is it bespoke to here? What impact could that model have on UK national security, for example?

Ms Boal: The 75/50/25-year model is not used anywhere else in the UK. Scotland, England and Wales have their own arrangements for retention. England and Wales still use indefinite retention, while Scotland's arrangements are slightly different. The model is something bespoke that we developed to suit Northern Ireland on the basis of the legal advice that we have received and what best practice is elsewhere, taking account of the Sunita Mason review of criminal records. It was a proposal that we developed taking account of our legal advice and how, we felt, the legislation should best address the findings of the Marper and Gaughran judgements.

Mr Dunne: Are you confident that it is the best fit for here even though there is no hard evidence of it being used successfully elsewhere?

Ms Boal: We believe so. We believe that it is a step away from indefinite retention, which is one of the flaws raised in the European Court of Human Rights judgement. We think that the model strikes the appropriate balance between the public interest in using biometrics to tackle crime and the rights of the individual. We believe that it is a good fit for here.

You asked about the impact on national security. The taking and retaining of biometric material under national security and terrorism legislation is the Home Office's responsibility. We do not have competence to legislate in that sphere. That is for the Home Office to do.

Mr Dunne: I have one other question on the Commissioner for the Retention of Biometric Material, which the Chair also mentioned. A commissioner was introduced in Scotland in 2021. Do you feel that lessons have been learnt from there? Are there any positives or negatives?

Ms Boal: We are in regular contact with our Scottish counterparts, and we looked carefully at the powers and role of the commissioner in the Scottish legislation and at the commissioner's role in England and Wales. We feel that the model that we decided on and the changes that we made have taken account of that. We have not replicated the Scottish model exactly; rather, we have developed a model based on what has been done in Scotland that, we think, suits the needs of here.

Mr Dunne: The Chair made a good point that its financing will be a key challenge, and we are keen to hear more about that.

Ms Boal: We will be happy to share that information. We are looking at the business case on estimated costs. There are estimates at the minute for staff costs and for the staffing model that will be needed to support the commissioner. We will work through the resource implications with our departmental finance colleagues.

Miss Hargey: I want to understand the thought process behind how it was decided that the 75/50/25-year model is appropriate for here. Can the legal advice be shared? Why is the model appropriate for here? Nowhere else across these islands uses a similar framework. Has the model been assessed against convention rights? Has scoping been done, and, if so, can we get a copy of the study?

Ms Boal: Some of this was developed some time ago, so I do not think that we have a document readily available to share. I am not sure what we have on record.

As I said, we looked at the England and Wales model, where indefinite retention is being used, and the advice that we received at the time — apologies, but it was some time before I was in post — was that, on the basis of the findings in the European Court of Human Rights judgement and the consideration that we needed to move away from indefinite retention, that model would not be suitable. Scotland is slightly different, in that its legislation is silent on retention periods. Police Scotland operates a weeding policy, whereby, after a certain amount of time, it weeds the records. As I said, there is nothing on retention periods in its legislation, so Scotland is slightly different. We looked at examples of regimes elsewhere, taking account of the legal advice, the judgement and the Sunita Mason review, which was based on 100 years. We reduced that to a 75/50/25-year model.

Miss Hargey: It was said that the Bill does not necessarily clearly define "biometric data". Why not? I also want to ask about emerging technologies and at the public interest argument for retention against article 8 rights.

Ms Boal: On the definition of "biometric data", we have focused on fingerprints and DNA for the purposes of the legislation. That is consistent with legislation in England, Wales and Scotland. The Bill focuses on the biometrics that are the most readily used in police investigations. It is an evolving and changing area, but, in policing terms, the focus is still on fingerprints and DNA. Technology is another emerging area. We are giving the commissioner a remit to provide advice and guidance to keep us abreast of developments in emerging technologies.

Miss Hargey: Benchmarking is being done with England, Scotland and Wales because of the synergy in the systems, but, given the nature of this island, is benchmarking happening with the South of Ireland?

The police use a number of databases that hold biometric data: the DNA database and the Northern Ireland DNA database. Is there any intersectionality between the two? There is some between police ones. Do you envisage there being a safeguarding and oversight role for the commissioner for how that data is used, particularly in an evolving technological space?

Ms Boal: The commissioner will have oversight of the whole legislative framework, including how biometrics are used, taken and retained. The commissioner will have an important and independent oversight role to play.

On intersectionality, colleagues in Forensic Science manage the Northern Ireland database and link in with the management of the national database. Forensic Science, the police and the Department now sit on the National DNA Database Strategy Board. The board brings together police, departmental officials and Information Commissioners from across the UK jurisdictions to provide that overall strategy and cohesion.

We have not really done as much active benchmarking with the Republic of Ireland as we have done with England, Wales and Scotland, probably because the jurisdictions are quite different. I think that the legislation in the Republic of Ireland is quite different. It is, however, something that we can keep under review when it comes to technology.

Ms Ferguson: What are the likely implications of having different retention systems?

Ms Boal: We do not envisage there being any implications for the devolved legislation from having different rules in different countries. The various systems that are in place will be able to handle that, so it will be able to be managed. At this stage, we do not envisage there being any issues. As I said, DNA taken under national security and counterterrorism legislation is managed by the Home Office.

Ms Ferguson: Do you envisage any administrative burdens being placed on the police?

Ms Boal: The police currently manage, administer, store and retain DNA. That is something that they do already. There will be some changes and, possibly, some extra work as a result of introducing the review process. There may be some additional administrative work required in order to process the review arrangements, but it is already part of the police's work to manage the retention of fingerprints and DNA.

Ms Ferguson: What safeguards are in place to ensure that the data is not retained inadvertently or unlawfully?

Ms Boal: We have the review process. After a certain number of years have passed, the police will be required to carry out a review to see whether they need to continue to retain the material. There is also provision for people to request a review of their material, and we will have a commissioner to provide that independent oversight. That is another important safeguard. [Inaudible.]

The Chairperson (Ms Bunting): Stewart, we cannot hear you. It may be a broadcasting issue.

Mr Dickson: Apologies. The connection is poor today.

What powers do you envisage the commissioner having to deal with either breaches or recommendations? Will the commissioner just make recommendations or have the power to enact them?

Ms Boal: We envisage the commissioner having the power to direct the police to take certain actions. If the commissioner believes that the police are holding material for longer than is necessary, the commissioner will have the power to direct them to delete it.

Mr Dickson: OK. No further powers are planned for the commissioner, however.

Ms Boal: Not in an enforcement sense, no.

Mr Dickson: What comparator are you using to benchmark those powers?

Ms Boal: We have been looking at the Scottish commissioner's powers and the Information Commissioner's powers to see what they have and what would be appropriate.

Mr Dickson: OK. The powers will therefore perhaps match but not go beyond, for example, the Information Commissioner's powers.

Ms Boal: That is correct.

The Chairperson (Ms Bunting): Doug, just for your benefit, the way in which we are pursuing this is that I have said to members, "Look, the Justice Bill's Second Stage is on Tuesday, so ask whatever you need to ask now, and let's make the most of this opportunity". We are working our way through the Parts of the Bill and will deal with each Part separately so that the questioning is a bit more structured. I say that just so that you know what we are doing. At this point, we are in the middle of Part 1, which covers biometric data. Does anybody have anything to add on biometrics? I have a few things to add, if that is all right.

I reiterate the point that this is a difficult subject. It is emotive and technical, and a lot of other legislation is entwined through the Bill. You have been working on the Bill for a long time, but we have not. We are also conscious that we are trying to strike a balance between people's rights and their ability to get justice. It is therefore not an easy area, and that is why I have concerns. I put on the record that an eight-week consultation was done over a summer during COVID: that is a flaw. Anyhow, we will move on from that. It is an important point, however, so you may want to address it and outline what you have done by way of update since then. It is important that I put that on the record.

There are a couple of other things to say. I will run through a few questions, and you can then take them one at a time. I am conscious of time. The information that we have indicates that the cut-off date for the retention of data in legacy cases in GB is 10 April 1998, whereas, for here, I think that it is 31 October 2013. I would like to understand the distinction.

When we asked about finances, we were told that it would not be appropriate to share costings with us because they were still being worked on. That again takes us back to the question of why the EFM states that the Bill will be delivered within existing resources. I appreciate that that is not part of your work, but it attaches to the work on retention.

Is the work of the Independent Commission for Reconciliation and Information Recovery (ICRIR) time-bound, and, if that work is not complete, what will happen to its samples and exhibits?

On biometrics, there is stuff in the Bill about deleting data after 10 years. My fear about some of this is that doing that could stop crimes being solved after improvements in technology come about. In the United States, a significant number of cold cases are being resolved because of genealogical DNA. If we are going to future-proof all of this, it would be helpful to have some understanding of what categories of crime fall into which area and what those look like. We have broad-brush measures in the Bill, but we do not necessarily know.

Similarly, there are things that worry about me about the retention of DNA in cases in which people have not been convicted. There are people who have not been convicted of a crime, but it may well be the case that the police have not yet been able to match the sample to them. The fact that somebody has not been convicted does not mean that the person is not guilty. I am concerned that justice opportunities will be lost because data has been lost. We know that the police hold biometric data, and we know that they have a raft of exhibits that have not yet been examined because they have not had cause to do so. That is a fear that I have. I would like to know what consideration you gave to that.

We note that you do not include custody photographs. You are essentially relying on how the police operate, on police goodwill and on a direction. Why are custody photographs not included for the sake of completeness?

I will leave it there and come in with a couple of other questions as we go on.

Ms Boal: Do you want me to take each of the questions in turn, Chair?

The Chairperson (Ms Bunting): Please. Thank you, Lisa.

Ms Boal: OK. On your point about the consultation, I appreciate that the previous consultation was short. I was not in post at the time, but I expect that that happened probably as a result of the pressures of trying to get the legislation ready in time, taking account of COVID. We will consult further on various aspects of subordinate legislation that needto be put in place. We continue to engage with bodies such as the Human Rights Commission. There are plans for further consultation on some of the more detailed aspects of the legislation. We will allow as much time as we can for that consultation, taking account of holidays and the like, to reflect the points that you have made.

The NIO is leading on all the issues to do with the ICRIR and legacy cases. I do not know whether it has considered what happens when the ICRIR is wound up and what happens with its data. I do not know whether the NIO has got that far in its thinking. It is, however, leading on all of that and owns the legislation on it. I do not really know what its thinking is.

The Chairperson (Ms Bunting): Lisa, on that point, if we move on the legislation, the NIO is likely to take account of the direction in which we move. How we choose to move on this could have a significant bearing on future legacy cases, yes?

Ms Boal: The NIO has put in place legislation to protect material for legacy investigations. That material is protected by its legislation. We take account of that. We have been keeping an eye on where that is, but we do not think that it impacts on what we do.

The Chairperson (Ms Bunting): I am just a bit concerned about what happens when the ICRIR ends. I do not know whether its work is time-bound, but, if the ICRIR's work is not done and responsibility reverts to the NIO, the NIO will have work to do. It will look to see what we have agreed, and that is why what we agree could have import in the future. Sorry, Lisa. Go ahead.

Ms Boal: We will have conversations with the NIO when it comes to us about that.

I think that deletion of data after 10 years relates to after a person's death. We have changed the position on that. There is no longer a provision in the primary legislation on after death. The provisions that were originally looked at were not workable. Given that we have maximum retention periods, if someone dies, that should come through the review process that we are building in. If the police are reviewing a person's record, their death will be taken account of when determining whether there is a need to continue to hold the material. If someone dies, there will be provision to enable their next of kin to apply to the police to have the material deleted.

The Chairperson (Ms Bunting): The principle remains the same, however. My fear about it is that, although somebody has died, it does not mean that they did not commit the crime or that the police could not link them to it, so the opportunity could be lost.

Ms Boal: We accept the fact that there will be a risk that, if somebody has had their material taken and does not have a conviction, their material will have to be deleted. That came out of the court judgement. If somebody was investigated for a particular offence and had their material taken but is still an active suspect in an ongoing case, the police will be able to continue to hold that material until the case and the investigation are complete.

The Chairperson (Ms Bunting): An ongoing case or the ongoing case?

Ms Boal: Any ongoing case, if a person has been investigated for an offence.

The Chairperson (Ms Bunting): That is my fear, because that will preclude people from getting access to justice in the end.

Ms Boal: That is the balance that we are trying to strike. The nature of the Gaughran judgement was that it was determined that it is inappropriate to continue to hold material on somebody who does not have a conviction. If somebody is under investigation for an offence, that material can be held until the investigation is complete. If the person had their material taken once and was found not guilty, it would not be possible. We appreciate the risk that is there, but we are trying to strike a balance in all of this.

The Chairperson (Ms Bunting): I understand. That is what we need to get our head around. We need to determine where we, as legislators, are on that. That will be some of the most contentious stuff.

Go ahead, Lisa. You were still going.

Ms Boal: We took the view that custody images are not really considered to be biometric data. There are differing opinions on whether those images are biometric data.

Scotland took a different approach, as did England and Wales. After considering that, we decided not to legislate for images at this stage and to just legislate for fingerprints and biometrics. As has been acknowledged, the PSNI will apply retention periods for custody images that are similar to those that it applies to fingerprints and DNA. We considered that to be the most appropriate way to move forward, given that photographs are not considered as biometrics.

The Chairperson (Ms Bunting): OK. What about the disparity in the cut-off dates between GB and Northern Ireland?

Ms Boal: To be honest, again, that is something that the NIO is best placed to answer. The 2013 date related to changes to legislation in England on the governing of biometrics and the introduction of the Protection of Freedoms Act 2012. I am not sure why they chose different cut-off dates for GB material and Northern Ireland material. That is an issue for the NIO to address. I would not feel comfortable trying to explain its thinking on that.

The Chairperson (Ms Bunting): That is OK. You cannot be all-knowing. That is fine, but we might seek clarification on it from the Northern Ireland Office to understand why there is a disparity.

Thank you, Lisa, for your answers so far.

Mr Laverty: I want to go back to a couple of points just to add a bit of context to some of what Lisa has said. It might be worth letting members know that the biometric provisions included in the Bill were originally drafted for inclusion in the Justice Bill that was passed at the end of the last mandate. When Lisa said that there was a time pressure around consultation and the drafting of the provisions, it is not that the time pressure was associated with the preparation of those provisions for inclusion in this Bill; it was because of the pressure of getting them drafted for inclusion in the last one.

I want to make a point around the financial aspects and the text in the EFM that states that the provisions of the Bill will primarily be met from within budgets. Were it not for the commissioner provisions, which were new provisions that were added to the biometrics material that was drafted for the 2021 Bill, the provisions in this Bill would not attract any additional costs. The part on biometrics is, almost by exception, the only one that requires further future business case consideration.

The Chairperson (Ms Bunting): the trust, but we will come to that. [Laughter.]

Mr Laverty: You are teeing me up.

The Chairperson (Ms Bunting): That is fair enough. We need to probe this, because we need to understand.

Mr Laverty: Of course.

The Chairperson (Ms Bunting): You will appreciate that, in previous Bills, post scrutiny, things were passed and organisations had to absorb the costs of that when their resources were scarce. We have heard that from stakeholders. I refer primarily to the PSNI. The legislation that established Operation Encompass and so on does great things, but there is a significant cost to it that was not probed at the time. The Committee has taken the learning from that on board, and we are trying to make sure that those mistakes are not repeated. That is why we are working through the Bill like this.

I am grateful to you for taking the time to be here, but it is important that we have this engagement ahead of Tuesday.

Deirdre, did you want in again?

Miss Hargey: Lisa, you said at the start that there would be some more addendums. Which areas of the provisions on biometrics will those be to?

Ms Boal: The existing legislation has powers that have not been commenced yet to enable police to recall people to have their biometrics taken if they were not taken when they were questioned initially. We want to tweak that power so that the police can specify a date and time to come back. At the minute, there is just an open power that requires people to come back, but we want the police to be able to give a time and a date so that it is easier all round for them to manage the process. We would also like that extended so that the police can recall people to take a photograph.

The term "reported" is also used in the biometrics provisions. We need to change that slightly to when the complaint is being laid against a person to clarify the timing on that and make sure that there is a consistent understanding of the term "reported", because it has caused some confusion. We also have to clarify, in light of the changes to community-based restorative justice (CBRJ), the retention period for court-ordered CBRJ schemes for adults. It is just to clarify those.

Miss Hargey: OK, thank you.

The Chairperson (Ms Bunting): Sorry, I am still going, folks. There are a couple more issues to raise. Will one of you expand on repeat convictions and the impact on retention, please?

Another issue is retrospective facial searches by the PSNI. There are rights issues around live facial recognition, but can you touch on retrospective facial recognition?

On the issue of children's data, it would be helpful to understand — perhaps you could furnish us with this information — the types of crimes for each category. I do not want to be dramatic about this — Northern Ireland has not had many serial killers per se — but there are things in children's convictions that are indicators of more serious offending down the line. If the retention is removed, there may be an inability to match, whereas somebody could be thwarted in their crimes more quickly if the data were retained. We understand that people start by hurting animals and move to hurting children and then much more serious crimes. Some things inspire that, and there are indicators, such as bed-wetting and head trauma. We know the indicators, but I am not clear why we are removing the potential to stop people before they commit a series of serious crimes, because there is a pathway.

Finally, the guards have facial recognition technology, and there have been issues with it. How long is DNA is retained in the South? We do not know how long the guards retain DNA, even in legacy cases.

Ms Boal: I do not know. I would need to find that out, Chair.

The Chairperson (Ms Bunting): Thank you. Lisa, over to you.

Ms Boal: On repeat convictions, if somebody commits an offence and is sentenced, their material will be held for a certain number of years depending on the nature of the offence. If they go on to commit another offence, the retention period for all the material is recalculated to start from the most recent date. A repeat offence will mean that the retention period is recalculated and that material is held from the most recent date.

We have not made provision for facial recognition and searching in the Bill. There will be a role for the commissioner to provide guidance on the matter. The police are looking at what use they will make of retrospective facial searching. There are no plans for the use of live facial recognition, but there are plans for retrospective facial imaging. I am not sure what the position is on that, but they are working on it. There will be a role for the commissioner to provide advice and guidance on that. The UK Information Commissioner has already put out a guidance note on the use of live facial recognition and the rights issues that need to be taken into account there.

On offending by children, the legislation provides retention periods for offences committed by children. Those retention periods are shorter and are determined by the nature of the offence and the disposal that has been given. It is a tailored regime: children are not being left out, but we are trying to take a more proportionate approach for them. If you want more information on that, we are happy to provide it in writing.

The Chairperson (Ms Bunting): We will know what we need as we work through the Bill, Lisa.

Ms Boal: I appreciate that.

I am not up to speed on how facial recognition is used by the gardaí and what their retention periods are. Again, we will need to find out more about that. I do not have that information.

The Chairperson (Ms Bunting): We can use RaISe to check that. Do members agree that we ask RaISe to check those things?

The Chairperson (Ms Bunting): Thank you. That is us covered. Lovely.

Moving on to children's bail and custody, members, who has stuff on that?

I do, but you have heard from me for long enough.

Miss Hargey: You start, Chair.

The Chairperson (Ms Bunting): OK. We have a memo that outlines that unconditional bail is standard for children: that is not quite what the Bill says. I want to understand the distinction, because the notion of unconditional bail, even for children, concerns me on a practical basis. We know that bail conditions can be something as straightforward as, "You must reside at this address", or, "You are not permitted into that area", and sometimes, where children are concerned, it involves a curfew. We also know that some parents welcome curfews, because they enable them to control children and teenagers of whom they have lost control and help keep them out of trouble. I would like some clarification of that.

I appreciate that we are now referring to young adults as "children", but I do not want it to appear as if we or the Department cannot conceive that young adults and children can cause mayhem from a fairly young age: they can. In groups, they can be considerably intimidating to elderly people and so on. Those are things that we cannot lose sight of. I also understand that we need to treat children differently and that we have to be careful about how we treat them, but we also need to consider victims of crime and the impact that they can have. I would like you to touch on that.

On the issue of bail and accommodation, there is reference to bail fostering and the costs going to the trusts. That is a pilot at the minute, is it not? I would like to have some understanding of that. I notice that, bizarrely, working that up and seeing how much it would cost across Northern Ireland was not part of the pilot. That seems strange. Any costs arising from such provision would be for the trusts. What discussions have there been with the trusts about taking that forward?

I would like some clarification on the business that a child cannot be kept in custody when there is nowhere else safe for them to go. From what I can gather, that is a restatement of existing law, which is fair enough, but, obviously, there are practical outworkings of that. What work has been done on the times when social services say that they are not taking a child and the implications of that? I appreciate that that is not a frequent occurrence, but it happens in cases where a child has become violent in a care setting, for example, and has, perhaps, attacked other residents or members of staff. In such cases, social services may say, "No, we can't take that person", which means that they end up in a B&B or somewhere else where, again, they could be subject to predators. In such cases, it could be safer for a child to be in custody — a youth justice centre — than be left in a B&B. What thought was given to that? What work was done on the times when social services say, "We can't take that child"? I will leave it there for now.

Dr Holland: Your first query was on unconditional bail. The provisions that are being brought forward provide a statutory right to bail rather than the presumption to bail, which exists at present. Unconditional bail is, as you note, to be the standard approach that is adopted. That said, there is still provision that any bail conditions that need to be considered in relation to a case must be proportionate and necessary and, in particular, take account of the circumstances of the case. It is a statutory right to bail. Unconditional bail will be deemed to be the standard approach, and bail conditions, if there are some to be imposed, should be proportionate, standard and reflect the circumstances of the case.

The Chairperson (Ms Bunting): Veronica, can I raise one other thing with you about that? I understand where you are coming from; I just think that there are implications. A standard right is OK, but the business of "unconditional" still needs to be looked at. The Bill states:

And, at part (d):

That concerns me because, whether or not there is a serious threat to public order, either a child has a right to bail or they do not. That provision has potential to allow communities to direct and dictate whether a child has a right to bail, which is not right: the law dictates whether a child has a right to bail. That could encourage communities to stir up opposition and prevent a child from getting bail when that child has a lawful right to bail. Did you consider that?

Dr Holland: That would have to be considered according to the particulars of the case. It is something that the police and the Public Prosecution Service (PPS) will consider when they decide whether any charges will be levied against an individual. If it is court bail, the judiciary will consider whether bail will be granted and any conditions that will be associated with it.

The focus is to ensure as far as possible, taking account of the circumstances of the case, that bail is granted to those children. A factor that has been important for us in the considerations here is the number of cases in which individuals are remanded into custody but do not necessarily receive a custodial sentence at the end of it.

A range of factors is considered as part of the process. It is about trying to ensure that things are proportionate and necessary, but, if bail conditions are needed, given the circumstances of the case, there is still provision for them.

The Chairperson (Ms Bunting): The concern is that, if somebody has a right to bail, even with terms and conditions, that right is there regardless of public opinion and public order. If there is a public order issue, one of the bail conditions should be that you are not allowed into a given area. It seems to me that you are creating a rod for people. The other side of that is that it has the potential to lead to overcharging.

Anyway, I have raised the issue, and I suspect that we will tease that out and hear more about it. I will open the Floor to members. Does anyone have anything to ask on children's bail and custody?

Miss Hargey: Just feeding into the custody and sentencing bit, clause 9 introduces the general principle that children will only be held in juvenile centres. Going back to the earlier discussion about pressures on the system, is there the capacity to do that in the system? If there was a spike, for example, in detention rates, what oversight mechanisms would there be to ensure that that principle is adhered to?

Dr Holland: The changes that are being brought forward are general to the Bill; they are not limited to that clause. It is very much desired that young people are held in juvenile justice centres such as Woodlands in Bangor, as opposed to young offenders' centres such as Hydebank. It is that separation of facilities between young people and adults.

On the issue of the capacity of the juvenile justice centre, it holds 10 per day on average. I visited the juvenile justice centre in Bangor earlier in the week. It is holding 10 individuals at the moment. Its capacity is higher than that. The trend over recent years has very much been a decline in the number of individuals being held in custody, albeit there is that wider issue of individuals being held in custody where there is little likelihood of them going on to secure a custodial sentence.

The sense that I got from discussions that we have had with the Youth Justice Agency is that there are no concerns about capacity with regard to the number of individuals who are likely to come into custody versus the number being held at present. That is not to say that there will not be something unprecedented, but, going by the trend data, there is certainly no risk of exceeding capacity when it comes to the numbers that they could have in the centre versus the number that they hold at the moment.

Miss Hargey: Thank you.

The Chairperson (Ms Bunting): Does anyone else have anything?

Ms Ferguson: I just want to follow that up. Do we have timely statistics? You said that, on average, the juvenile justice centre holds 10 individuals a day, but, as we know, things can change quite rapidly and the situation can become uncertain. Is there access to timely statistics in that area?

Dr Holland: The Youth Justice Agency holds information and data in that area. In the most recent year — 2023-24 — 114 individuals were remanded in custody. Of those, only seven went on to serve a custodial sentence. Certainly, there are more general statistics available, should you want them.

Ms Ferguson: It is useful to know where that data is. That is great. Thank you, Veronica.

The Chairperson (Ms Bunting): Will you guys please come back to me on the conversations with the trusts about bail fostering?

Dr Holland: As you noted, Chair, a bail fostering pilot is under way. There have been two successful placements as part of that, both of which are in one trust area. My understanding is that there are to be further conversations and discussions on how that can be take forward more widely across Northern Ireland. At the moment, however, it operates in one specific trust area. There has not been an expansion into other areas, but there is very much a desire to look at that further to see whether it can have a beneficial and positive impact in terms of the alternative accommodation that may be available for individuals. Certainly, it is something that the trusts and the Youth Justice Agency are keen to explore on a wider basis.

The Chairperson (Ms Bunting): Is there a time frame for that, Veronica?

Dr Holland: I do not think so; I am not aware of one. We can look into that for you. In all likelihood, that would be subject to the necessary resources and funding being in place for it. I am not aware of a time frame for further consideration of the other trust areas.

You also asked about individuals being held in custody where there is not a safe place for them. I appreciate that that is a concern. There is an issue in relation to clause 8 more generally where no alternative accommodation is available for those individuals. That is one of the reasons that that provision will not be commenced until there have been further discussions and outworkings. Some of the earlier discussions highlighted the fact that that provision was a carry-over from previous legislation. At that point, there had been ongoing discussions on a shared secure care and justice campus. Those discussions are not progressing at the moment, but, having spoken to Health colleagues, our understanding is that there are some discussions ongoing on that. That issue is likely to be looked at more generally in the context of the recommendations that will come out of the review of children's social care services. We are conscious that that needs to be resolved before those provisions can be commenced. We are also conscious of the fact that the provision of that accommodation is not within the gift of Justice: responsibility for that sits with the Department of Health. Nevertheless, there will be discussions ongoing on that ahead of the commencement of those provisions.

The Chairperson (Ms Bunting): That is fair enough. It is an area that we will want to feed into, as, I am sure, will your Department.

Miss Hargey: I want to follow up on the general principle of 18. Do the changes in the Bill address all the criticisms and concerns in the United Nations Committee on the Rights of the Child's 2023 report? I also wanted to mention the implications of any change to the minimum age of criminal responsibility. If that was to change, would there be any implications for the Bill? Where are we on the issue of changing the minimum age of criminal responsibility? I am keen to get an update on that.

Dr Holland: The provisions that are being introduced are very much a response to the United Nations Convention on the Rights of the Child. The changes are very much intended to ensure that there is compliance with that; for example, that children are held in custody only where necessary and for the shortest appropriate time.

As you all know, the Minister is keen to make progress on the minimum age of criminal responsibility. We recently prepared a paper on that and reasonable chastisement and shared it with the Executive. As you can appreciate, the Minister and a wide range of voluntary sector and statutory organisations are keen to see that progressed. It is one that, unfortunately, she cannot progress on her own. The Department of Justice cannot take a decision on that; Executive agreement is needed. We have only had one Executive response on it to date. That is where we are on the matter: the Minister is keen to see change, but that is subject to Executive agreement.

A number of the changes in the Bill mean that, for less serious offences, 10- to 13-year-olds will not necessarily be captured within the criminal justice system. There will be other mechanisms through which the offending behaviour or incidents can be addressed, and there could be a greater focus on those who are 14-plus. If that change was brought forward in due course, I do not see it necessarily having adverse implications for the provisions in the Bill.

It is important to stress that it is not that those 10- to 13-year-olds could not be dealt with and that there would not be redress. However, part of the wider policy focus for the Minister will be on trying to ensure that those individuals are not necessarily going into custody for less serious offences, while ensuring that there is the necessary provision to deal with those individuals through alternative means and that, for serious offences, the custodial option remains. There is no change in that respect.

Miss Hargey: Thank you. On that last snippet about the minimum age, do you see that sitting in this Bill or the next Bill on sentencing reform?

Dr Holland: It could sit in either Bill. The issue is the fact that there needs to be Executive agreement to that for the Department to table an amendment. There would not be anything to prevent individual Members from tabling an amendment as the Bill passes through. I will just check with Andy that my assumption is right.

Ms Campbell: It could potentially fall within the scope of a justice Bill. If there was agreement to move forward on a sentencing Bill, I am less certain that it would be within the scope of that. We would have to look at that.

Dr Holland: So, probably this one more so.

Mr Laverty: Following the conversations that we have had with the Minister on the legislative programme, it is really this Bill or none at all in this mandate. This is the only Bill that will clearly have the scope to capture it if a decision is taken that something should be progressed.

Miss Hargey: That is useful. Thank you.

The Chairperson (Ms Bunting): There are clauses in the Bill that indicate that it is moving in that direction anyway. Will you comment, first, on the removal of custody care orders for 10- to 13-year-olds, and, secondly, on what provision there is for 10- to 13-year-olds? A lot of this stuff seems to start at 14, which makes me think that the minimum age of criminal responsibility is moving towards 14 but not overtly.

Dr Holland: With regard to the orders that you refer to for 10- to 13-year-olds, my understanding is that those provisions have never been brought into force. As I indicated at the start, the focus of the new order is very much on less serious offences. There is no change being made in relation to more serious offences or grave offences. If you have serious violent offences or serious sexual offences, there still is very much a capacity in relation to that age group for custody to be an option. In respect of the Committee's concern, in no shape or form is it doing away with that option for that age group. It is just that the focus is very much on trying to ensure that custody is used only where necessary and the new order is really for those less serious offences for that age group.

The Chairperson (Ms Bunting): The new order can be applied to that age group.

Dr Holland: The new order is for those who are 14-plus.

The Chairperson (Ms Bunting): What happens with less serious offences for 10- to 13-year-olds?

Dr Holland: Those would be taken forward through a non-custodial route, be it a community order or some other provision. That decision would be at the disposal of the court. It is not that there will not be redress; it is just trying to ensure that that age group will not go into a custodial environment for less serious offences.

The Chairperson (Ms Bunting): May I check one other thing? It is the removal of the provision to place a child on remand for the purposes of retaining information about them. Has that been happening? What is behind this? What is going on?

Dr Holland: That provision was on the statute book, but I do not think that it has necessarily been used to any great extent, if at all. When it comes to the focus of the provisions and compliance with the UNCRC, the provision is intended to ensure that custody is used appropriately. It is not considered appropriate to place somebody in custody solely for the purpose of obtaining information from them, whatever that information may be.

The Chairperson (Ms Bunting): That is fair enough. That is great, Veronica. Thank you.

We will move to Part 3, which covers live links. Do members have any questions on live links?

I will start. It would be helpful to see a summary of the consultations on live links. We all agree with the general principle of them, but it would be helpful to see some information on whether consideration was given to case type rather than hearing type. Do you know what I mean by that?

Ms Boal: The legislation will provide for the use of live links for reviews of detention. Their use will be determined for a function rather than by case.

The Chairperson (Ms Bunting): Yes, but you are moving into the policy area of police interviews, court appearances and so on. I appreciate that live links are currently used for some bail purposes and so on. It is hard to understand, because we do not have the detail in front of us, although 138 pages will wing their way to us in due course.

Ms Boal: Sorry. That is probably confusing things.

Mr Laverty: That is a different issue.

Ms Campbell: May I just say, Chair, that the fact that the instructions on live links for courts and tribunals run to 138 pages in no way suggests that the provision that is required in primary legislation will be anything near as extensive? To be honest, we sometimes have to go through a lengthy and laborious thought process to end up with something quite straightforward and simple. In order to do what we seek to do in policy terms, the provisions have ended up being not dissimilar from those in the temporary emergency legislation. It is a good example of the issues that the Deputy Chair raised about the careful balancing of rights in the past. We have been legislating on the use of live links in court for about 20 years now, and it has evolved. Twenty years ago, when the technology was at a different stage of development and there was less familiarity with and availability of live links, conclusions about where the balance lay — for instance, whether a defendant's consent was needed — were different from the ones that we are reaching now. I reassure you that having 138 pages of instructions reflects how thorough and diligent we have been in working through those issues. It does not imply that we will create a massively long provision. Ultimately, of course, it will be for the draftsmen to decide how they want to present it. I cannot pre-empt that, but I reassure you on that point.

The Chairperson (Ms Bunting): I want to flag another thing. I understand what you are trying to do with the safeguards that you are putting in place for children who are not yet 18 and for vulnerable adults, but it seems to me that the idea behind it is similar to the issues faced with body-worn video. The police can rock up to situations involving a young person or a vulnerable adult — or any adult, never mind a vulnerable one — and take video footage that will be used in the course of prosecutions. When the police ask the person, "What is going on here?", the person's response is, essentially, their giving a statement to the police, but that person may be vulnerable or unfit to be interviewed, due to intoxication or whatever. Was any consideration given to that? It seems to me that the ideas and vulnerabilities are the same.

Ms Boal: The use of live links for police interviews is covered in Part 3. The legislation does not have much detail on the use of live links, but there will be consultation on two of the PACE codes, which set out in a lot of detail the various safeguards that have to be put in place. The police will have to take account of whether the use of a live link is appropriate, whether it enables the person to fully participate, whether the person understands it and what safeguards are put in place. A whole process will have to be gone through, including the person getting legal advice and, if they are a child, having an appropriate adult present as well as their legal representative. A lot of checks and safeguards will have to be worked through before a decision is taken on whether the use of a live link is appropriate. The police might have a child in front of them and think, "A live link is not appropriate in this situation. We will do it in person". We will consult in due course on the codes that will set out all those safeguards.

The Chairperson (Ms Bunting): That much I get, Lisa. My issue is that they are already doing this with body-worn video, but all the same risks apply without any safeguards. Do you see my point?

Ms Boal: I am not familiar with the position on body-worn video. I am just explaining that we will set out safeguards around the use of live links.

The Chairperson (Ms Bunting): That is fair enough, but there are the same issues for body-worn video, yet no safeguards are in place.

Does anyone have anything else on live links?

Ms Ferguson: I have just a couple of questions. What is the cost to the PSNI of training police officers to use live links technology?

Ms Boal: We have been in touch with police colleagues about their implementation of it. They have not flagged with us any costs of training in the use of live links, but I can certainly check that and find out. We are not expecting any such costs, but I am not confident about answering for the police, so I need to find out more about that.

Ms Ferguson: OK. Thank you. Will the use of live links apply to all categories of offence?

Ms Boal: Yes. It will be open to the police to consider whether they want to use it. The offence will not necessarily matter. What the police want to use will be decided on a case-by-case basis, depending on the individual whom the police want to question or do a review with. It will depend on the person and whether live links are suitable for use with them.

Ms Ferguson: Finally, how will the new arrangements be monitored, and should they be subject to review following their introduction? What is the plan?

Ms Boal: The Department does not normally monitor how the police conduct their operational business — the Chief Constable has operational independence — but oversight and monitoring arrangements are in place through the Policing Board and its human rights adviser and through Criminal Justice Inspection and His Majesty's Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS). The oversight and monitoring arrangements of those bodies are in place — they have oversight — and there are also independent custody visitors. The Department would not necessarily do anything specific, because we respect the operational independence of the police and the independence of the existing oversight and monitoring bodies.

Ms Ferguson: It would be useful for us to have the police overview of or review process for live links once that goes live. Like anything else, it needs to be monitored and reviewed, and it would be useful to know about that.

Ms Boal: I am not sure what arrangements the police will put in place, but we can certainly ask for detail on that.

Ms Ferguson: That is grand. Thank you.

The Chairperson (Ms Bunting): Is everybody ready to move on to Part 4, on administration of justice? Do we need a change at the table?

Mr Laverty: We will make some personnel changes, Chair.

Mr Bradley: Just before we move on —.

The Chairperson (Ms Bunting): Sorry, folks, just a second. Maurice has a question. Go ahead, Maurice.

Mr Bradley: Maybe this question is not for this section of the discussion. Is the new post of Northern Ireland Commissioner for the Retention of Biometric Material a full-time post with an annual salary? According to the explanatory and financial memorandum, paragraph 5 of schedule 1 to the Bill provides for:

What is the cost?

Ms Boal: We are still in the process of working out the final cost. It will all be estimates until we see the final shape of the office, but we are working through the salary costs and the budget that might be needed to run the office.

Mr Bradley: For clarity, will it be an annual salary —

Ms Boal: We expect so.

Mr Bradley: — with additional payments for staff, accommodation, equipment, computers etc?

Ms Boal: There will be costs for the staff that the commissioner will need to support them in carrying out their duties. For things like accommodation, we will see what can be provided from the shared services that are available and whether there is existing DOJ accommodation that they can use, and we will tap into wider Civil Service resources for functions such as IT and HR.

Mr Bradley: Thank you very much.

The Chairperson (Ms Bunting): There will be a change of table. Stewart, you wanted in on Part 4, did you not?

Mr Dickson: Yes, Chair. Thank you. I appreciate being brought in at this stage. There are a number of areas in relation to Part 4 of the legislation. If you want to touch on some of the earlier Parts, feel free to do so, but the area that I particularly wanted to focus on is the legal aid section. Chair, I will take your guidance: if you want to do the earlier bits of Part 4, please feel free; otherwise, I would like to ask a few questions around legal aid.

The Chairperson (Ms Bunting): No, Stewart, you do your thing now. We are just taking it Part by Part, so we are not being specific about where in the Part.

Mr Dickson: OK, Chair, thank you very much. I thank the officials for joining us. The 2016 Public Accounts Committee report on the subject raised concerns around the role of the Taxing Master, who adjudicates on around £90 million in legal aid fees each year, but that operation is outside public-sector accountability. What specific steps has the Department taken between that 2016 report, which is now quite dated, and the potential legislative changes to improve transparency and ensure greater oversight of the process? Maybe officials could give examples of where there is evidence of changes made to address those concerns. I have a couple of other questions that follow on from that.

Mr Steven Allison (Department of Justice): All aspects of legal aid fall to me. It is right to say that the PAC recommendation has some vintage attached to it. Quite a lot of work was done after the PAC recommendation in scoping how we could go about giving effect to it. A project was set up to look at family fees, which is one of about 50 areas that are subject to taxation.

It might help if I explained what taxation is. Sometimes, when we mention taxation, it gets lost in the vocabulary and lexicon of legal aid. Taxation is where the High Court or the Court of Appeal makes an order for taxation where we do not have that, necessarily, in the legal aid fee framework. That order means that the solicitor and/or the barrister will then submit their bill. The solicitor will submit a very detailed time and line fee to the Taxing Master, a judicial, independent role. The barrister will mark up a brief fee and send the brief fee in for assessment. The Taxing Master will then look at what has been submitted by way of claims in those bills, make a determination of what should be paid and issue a certificate. That certificate is then handed to the Legal Services Agency (LSA) on behalf of the Department, and LSA must pay.

As Mr Dickson set out, in normal public accounting — the guidance used in looking at public funds — we have no skin in the game apart from paying the bill. The PAC recommendation was, essentially, that it needed to come under the purview of the Department. We need to consider its coming under the purview of the Department and moving the assessment process into the Department of Justice so that we can set fee frameworks and an associated assessment process.

We did some work in the early days, in 2017. We were overly ambitious, to be quite candid, in the scope of that project and the availability of data to evidence any change. We got caught up, obviously, with the pandemic and other things. Candidly, it has proceeded in fits and starts. I came into the role and reviewed where we were. Last year, we set up a dedicated branch for taxation reform, and that has made significant process.

Mr Dickson, in answer to your question about what steps we have taken, the branch has been established. For the first time, we have had access to the Taxing Master's office and files. I place on record my gratitude to the Taxing Master and her office for facilitating that. That was the first time that we were able to see what was being submitted — what was actually coming through — rather than the end result. We are grateful for that. We are grateful to the profession, particularly the Law Society, which has engaged this year in helping us to understand how their time and line bills are put together and their views on where we move from that.

On the programme board, we have also decided that the first area that we will move to bring under the purview of the Department — this is a complex area, so we are taking a phased approach — is High Court bail applications, which make up only about 2% or 2·5% of the spend in the legal aid taxation space but almost 17% of the volume of cases. If we can capture a significant volume of low-level figures, that will help us to gain an understanding, to develop our thinking on the assessment process and to stress-test that process in a safe environment. At the moment, we plan to present, by March 2025, proposals to stakeholders on how we can bring the High Court bail fee structure under the assessment process.

We looked separately at two other areas for which we are exploring the terms of the research stage: criminal Court of Appeal; and judicial reviews and their associated costs. It is fair to say that our assessment across the taxation process and the current taxation fees structure is that there is a wide variance in the bills that are submitted. To be candid, it is sometimes difficult to understand the basis of what they are. We are still trying to understand what brief those are under.

The Chairperson (Ms Bunting): We have asked how they are calculated, too. We are still waiting for the answer to that, but I am sure that we will get it.

Mr Allison: We are still engaging with the Bar on that, and we have not got to that answer. We are completely unsighted on that area. It will be difficult to come up with a fee structure that accommodates brief fees or addresses the principles of a brief fee if we do not know what the building blocks are. We will keep engaging with the Bar on that.

There have been a number of steps forward, Mr Dickson, in fits and starts. We have moved from the landscaping stage to having a dedicated team and access to the Taxing Master — I am so grateful for that, because it has given us the insight that we need. We have also made good progress with the Law Society. We have made less progress with the Bar, so far, but that work is in progress. There is real commitment from the Bar to engaging with us; it is just that we are not yet at the point of having an understanding of the fee structure.

I will give some examples of the fees and variances. If it would be helpful, I am more than happy to provide a written briefing on this. It covers a lot of ground, but it can illustrate the high costs associated with some of these areas. I have been approached by a number of people in the Bar and the Law Society, as well as a couple of members of the judiciary, who said that, if you want to sort something out to reduce costs in the legal aid space, you should look at the criminal Court of Appeal because of the high-cost items there. I will refer to my paper to make sure that I give the proper figures. In the 2023-24 financial year, the criminal Court of Appeal represented 2·8% of the volume of cases that the Taxing Master assessed, but that accounted for just under 10% of the cost out of the legal aid fund. By way of an update, in the 2023-24 year, £26 million was spent from the legal aid budget by order of the Taxing Master, which was almost 25% of the spend in that year.

We see quite a wide variance between the fees submitted on behalf of the defence through taxation and the fees that are paid by the Public Prosecution Service to its counsel. I will give a couple of examples — I am not saying that these are typical examples; they are just a couple of examples from our sample. Junior counsel are paid just under £700 by the PPS for appearing at the criminal Court of Appeal. The junior barrister equivalent, appearing on behalf of the defence, receives £15,000 after taxation. You can see the difference. I have other examples in that space. I do not want to be alarmist or say that those are typical. There is clearly room for reductions in that space —

The Chairperson (Ms Bunting): Transparency.

Mr Allison: — or for a little alignment. There are certain areas in the taxation space where, for rebalancing purposes, we also need to look at upping some figures: there are certain areas that will and should cost us more, so as to be fair on remuneration. There is the potential to look at redistribution in that space. There are some stark figures coming out of our analysis.

I have gone on quite a bit there, so apologies, but I hope that I have covered most of what you asked for, Mr Dickson. As I say, I am happy to provide a more detailed briefing on the analysis and the detailed plans moving forward.

Mr Dickson: That was very useful by way of background. Essentially, these are bills that legal professionals put in against court cases in which they have participated and for which they are entitled to receive legal aid. However, the Taxing Master is not within the purview of public-sector finances, and that was at the heart of what the Public Accounts Committee and the Auditor General said in their report. The change in legislation is important because it has the potential to bring public money under public control.

I think that you are right: there will be swings and roundabouts with all of that, but there are very large sums of money at play here, and this is public money. You even surprised us by what you said. It is welcome that the Taxing Master has given an opportunity for you to look at this. Have you been able to analyse the pattern of work that is undertaken and the how, where, what and why behind whether bills have been reduced or — I do not know: does the Taxing Master have the power to increase a bill? — increased, given that you said that some areas might be underfunded?

It would be very helpful to the Committee if you were able to share recent data and analysis that demonstrate progress in reducing such claims and to outline exactly what the level of collaboration is between the Department and the Taxing Master and what transparency there is between the two of you on this. Ultimately, Chair, it will be very difficult to escape the requirement of the Auditor General and the Public Accounts Committee that this function should, effectively, be transferred to the Department or to an independent assessor appointed by the Department to carry this out with public scrutiny and public accountability.

Mr Allison: I will take a couple of the points about the Taxing Master. Clearly, we respect the independence of the Taxing Master. She has afforded us access, which is the first time that we have managed to get there, so it has broken new ground for us. We are getting an insight from the papers into the sort of areas that the Taxing Master typically reduces in some of the bills that are coming through and the level of percentage cuts involved.

It is important to highlight that the PAC recommendation was based on and recognised that the Taxing Master was reducing bills by, on average, 9% to 13%, I think, which resulted in the figure of £26 million that I mentioned. We are seeing in some of the samples that are coming through and some of the information that the LSA shares with us that the Taxing Master is reducing some bills by upwards of 50% and others by anything between 0% and 50%. That refers to the difference between the amount submitted and the amount that she has then ordered to be paid. Again, it goes back to this: how do we understand the building blocks of a brief fee when the Taxing Master, with all her experience, is able to bring to bear a reduction of 45% on a bill that is submitted?

We are still working through the "how". We have to understand the "how" to be able to develop the assessment process and the policies for Legal Services Agency staff to replicate the principles of that. We then also have to understand the building blocks of the fee structures, the brief fees and so forth to be able to come up with secondary legislation that introduces a set of fees for criminal Court of Appeal, divorce or whatever it may be.

The Chairperson (Ms Bunting): Thank you, Steven.

Miss Hargey: Thanks very much. It would be good to get that written update when you can provide it. That would be useful because this issue has come up, and one of the things that throw me is the fact that solicitors have to itemise their costs whereas barristers do not. Do you see that changing as part of bringing greater accountability and oversight?

Mr Allison: We have to look at that. I have been candid with the Bar in my opening correspondence. I have next to no idea how a brief fee is made up. That is genuinely the truth. Until I get that granularity and understanding, it is difficult to say whether we should move from that.

I might reach an understanding whereby I can say, "Yes, I get it. That makes sense. You don't need to do time in line". However, there is such a difference between what solicitors submit — 15-minute time in line fees, including how much time was spent on an email and this, that and the other — and a four-, five- or 100-page narrative saying, "This is my brief fee", which is what barristers submit.

Miss Hargey: Do we have any understanding currently of why solicitors have to itemise but barristers do not? Is there a rationale for it?

Mr Allison: It could be something to do with the Law Society's rules and regulations or the Bar's rules and regulations; it is certainly not because of our regulations I imagine that it is in that space, but I will come back and confirm.

Miss Hargey: That would be good. Thank you.

Mr Bradley: Clause 22 concerns the delegation of powers by the Policing Board to members of the board or board staff in relation to ill-health retirement, pensions, injury on duty and other miscellaneous benefits. I welcome that clause, but, just for clarification, will the board still have oversight scrutiny of any decisions taken by any delegated authority in the board?

Ms Therese Murphy (Department of Justice): That question is for me. The provision will allow any board or committee member to delegate functions to officials, should they decide to do so. We spoke to other Departments about the initial concerns. Other Departments have narrowed delegated powers, including on a schedule of delegations. We wrote to the board about that and asked whether it could provide a schedule, but the chief executive informed us that members would need time to consider that. That is still being worked out, but, at the minute, all board members make any decisions in relation to any of those matters.

Mr Bradley: It is a welcome clause.

Ms Murphy: Yes.

The Chairperson (Ms Bunting): I will take you to the whole issue of extending security around tribunals. Again, it is indicated that there is no cost. What do you intend to do? What are the outworkings of that? If it is at no additional cost, why is it not already being done?

Mr Laverty: The official who was here to speak to those provisions had to leave because she has a legal consultation this afternoon, but I can speak to it at a very high level. Alternatively, you might want to spare my embarrassment, and we could offer you a more detailed answer in writing. It is entirely up to you.

The Chairperson (Ms Bunting): Could you give us some indication of what you intend to do? All we need, Andrew, is to make sure that we are going into Second Stage informed.

Mr Laverty: OK. It is not that the courts are seeking to do a power grab; it is purely to allow for scenarios where perhaps there is water damage to a court building or to a building or premise that is used for tribunal purposes. Security officers can provide their services only at the premises that are listed in the parent legislation. This is an order-taking power that would allow the courts to designate alternative buildings in the event that they are needed. There is no cost because the existing security personnel would move from the premise that can no longer be used to the new premise.

That is the summary of my level of understanding of it. I hope that that is sufficient.

The Chairperson (Ms Bunting): That is OK. That is what we need to understand at this stage for Second Stage on Tuesday.

Will somebody please explain to me the prevention of no billed provision? I am not clear about why lesser charges would not apply. Will you work us through that, please?

Ms Emma Crozier (Department of Justice): No problem. If you are content, Chair, I will explain the current defences that are in place, the gap that has been highlighted to us and why we consider that it should be closed.

Section 5 of the Domestic Violence, Crime and Victims Act 2004 created an offence of causing or allowing a child or vulnerable adult to die. Section 5 was then amended by the Justice Act (Northern Ireland) 2015 to extend the offence to cover causing or allowing a child or vulnerable adult to suffer serious physical harm. That section 5 offence covering both death and serious physical harm was intended to address the problem where a child or vulnerable adult dies or suffers serious physical harm in the following circumstances: there are two caregivers or, potentially, more in the household; there is no evidence that they acted jointly, but it is very likely that one of the two caregivers caused the death or harm and the other did not take reasonable steps to prevent it; and there is no admissible evidence implicating one rather than the other, meaning that there is not a sufficient case for murder or manslaughter or for grievous bodily harm or attempted murder.

Under this offence, the prosecution does not have to prove which person caused the death or harm and which allowed it.

Section 7 of the Domestic Violence, Crime and Victims Act 2004 applies:

Section 7 amended the procedural and evidential rules, meaning that:

At the defendant's trial, the question of whether there is a case to answer on the charge of murder or manslaughter is not to be considered before the close of all evidence.

Then, in 2015, at the point where section 5 was extended to cover causing or allowing serious physical harm, a new section 7A, covering evidential and procedural rules, was added. This very much mirrors section 7 for causing or allowing death but applies when a Magistrates' Court is considering whether to commit a defendant for trial for attempted murder, grievous bodily harm or non-fatal strangulation. Again, this means that, if there is sufficient evidence to put the defendant on trial for the offence of causing or allowing serious harm to a child or vulnerable adult, it is automatically deemed that there is sufficient evidence to put them on trial for the offence of attempted murder, grievous bodily harm or non-fatal strangulation. Again, mirroring the arrangements for manslaughter, at the defendant's trial, the question of whether there is a case to answer on the charge of attempted murder, grievous bodily harm or non-fatal strangulation is not to be considered until the close of all the evidence.

Section 7A made provision in relation to the entry of a no bill for cases of causing or allowing serious physical harm, and this is where the gap arises. It might be helpful if I just explain the procedure for the entry of the no bill. Section 2(3) of the Grand Jury (Abolition) Act (Northern Ireland) 1969 makes provision so that a judge in the Crown Court has the power to enter a no bill in the Crown book in respect of any indictment presented to it, if he is satisfied that there is not a significant case to justify putting a person on trial for the indictable offence. If the judge enters the no bill, the charge will drop. In the context of these provisions, a judge in the Crown Court can enter a no bill in relation to attempted murder, grievous bodily harm or non-fatal strangulation only if they also do so in relation to the section 5 offence of causing or allowing serious physical harm.

The Chairperson (Ms Bunting): Emma, hang on.

Ms Crozier: Sorry. Too much?

The Chairperson (Ms Bunting): No, no. It is not you. Let us take a second. What is "no bill"?

Ms Crozier: The judge can enter that in the Crown book if they do not think there is enough evidence to proceed, and it then drops off. An application can be made to the Crown Court for a no bill, and then the judge, with judicial discretion, can consider whether there is enough evidence to put the person on trial or not. Is that OK?

The Chairperson (Ms Bunting): Carry on. I am not sure I am there yet, but t I will get there eventually.

Ms Crozier: The restrictions on the entry of a no bill are needed due to the evidential difficulties in such cases, and it is to ensure that the evidence is heard for all the charges before the judge considers whether any of the charges should be dismissed. This removes the risk of the more serious charges of attempted murder, grievous bodily harm etc being dismissed prematurely before all the evidence for the whole case has been heard.

With regard to the gap, an equivalent provision to restrict the entry of a no bill has not been provided in relation to causing or allowing death in 2004. We believe that this was an oversight. The proposed measure is intended to resolve this. As it stands, it is possible for a judge to dismiss the murder/manslaughter charge whilst continuing with the causing or allowing the death of a child or vulnerable adult. This is not the policy intention and is not in line with the equivalent arrangements in England and Wales. In that jurisdiction, a judge cannot enter a no bill on the charge of murder or manslaughter unless the charge of causing or allowing death is also dismissed.

That gap was raised with us as an urgent concern by Mr Justice O'Hara in a ruling on an application for a no bill made by a defendant in a case involving the ill-treatment and death of a five-year-old child. Judge O'Hara commented that the legislation as it stood with the gap was illogical. In that case, though, he noted that he was satisfied that it would have been open to the jury on the available evidence to convict the defendant of murder, although, if required, he would have used his judicial discretion to refuse the no bill. However, he referred the judgement to the Minister and the Department so that the gap in the legislation could be filled as urgently as possible.

Do you want me to keep going? I do not know if that is any clearer.

The Chairperson (Ms Bunting): What would be helpful is if you could you send us through that explanation so that we would have if for Monday in order to prepare our remarks for Tuesday.

Ms Crozier: Of course.

The Chairperson (Ms Bunting): That was something that I was really struggling to get my head around. It is one of those that we may need to see rather than listen to. Does that make sense?

Ms Crozier: Yes, I think so. You need to

the rest of the problem as well.

The Chairperson (Ms Bunting): Is anybody else in that boat?

A Member: 100%.

Mr Laverty: Chair, I have worked in the Civil Service for 39 years, and I have been working with policy and legislation for the past 19, and I do not understand this, so you are not alone. That is one of the reasons that you have my sympathies in terms of the complexity of the provisions of the Bill that you have to scrutinise.

The Chairperson (Ms Bunting): Yes, thank you.

Miss Hargey: Repeat those words, too, as we move through this. [Laughter.]

Mr Laverty: I am an open book.

The Chairperson (Ms Bunting): That would be helpful. Emma, thank you. I think that it has helped to elucidate it a bit, but we probably all need a bit more percolation of that one, if that is all right.

Ms Crozier: Of course.

The Chairperson (Ms Bunting): You have done that one for me. There are a couple of things that we will pursue. The Law Society flagged up concerns about the unintended consequences of contingency on conveyancing practice. That is the business of clawing back legal aid under property, where that is awarded. We can pursue that at further stages as we move through.

One thing that I do want to check with you is the provision in the Bill on legal aid. It is essentially a future-proof whereby you are saying that it is not going to be implemented. It is about alternative methods of determining remuneration. It will not be commenced, but will take effect project by project. That worries me, because it seems that we are being asked to legislate in a vacuum on stuff that is not going to be commenced. I am concerned what "project by project" means in practice. How will we establish consistency across the piece? We need clarification on stuff like that. I am flagging that up to you at this point. I am conscious of time, and you have been more than generous with yours, but those are areas where I still want to understand what that looks like, because it is not clear.

Mr Allison: I can touch on it briefly, conscious of your time, and I will include this in the written briefing that I committed to earlier.

That amendment is a precursor to the taxation reform that we discussed earlier. It simply removes any sense of taxation being available if the Department introduces subordinate legislation setting out a fee framework for whatever area. All this is doing at this point, by way of reassurance, is simply clearing the ground for us to take forward the reform to remove the taxation master's role and bringing that into the Department. With regard to the sequencing, when we move the proposals on the High Court bail fee structure — we mentioned High Court bail earlier — we will have to introduce that after consultation through the Assembly, properly scrutinised by yourselves. That point is when that amendment bites, but it bites on only that provision. It does not bite on any other fee structure. Every time we bring a separate instrument — and there will be a range of separate instruments coming forward on High Court bail, Criminal Court of Appeal, divorce —.

The Chairperson (Ms Bunting): We can hardly wait, Steven.

Mr Allison: You can see my enthusiasm as well. They are complex, but if it is any reassurance, I can set out the high-level plan in the paper to show what you can anticipate over the next 12 to 18 months. I have not got as far with my team in the very complex area of family and civil law, because it involves children and is complex.

The Chairperson (Ms Bunting): I understand. It will be helpful, just so we have a context for this.

Does anyone have anything else? No. On that basis, I thank you all. You have been generous with your time; we greatly appreciate it because there is a raft of things in the Bill. It is not straightforward for us. You have been great. Thank you.

Can I ask about a couple of things to finish with? On the delegated powers memorandum, there are a considerable number in the Bill.

Mr Laverty: There are about eight in total.

The Chairperson (Ms Bunting): That is a fair whack. Executive guidance is that that will be with us.

Mr Laverty: I hold my hand up to that one, Chair. I apologise that it will not be with you as soon as I would have liked. It should have been with you before Second Stage. With the best will in the world, there was a rapid change in timetabling because the Speaker gave clearance late on the evening of 16th that we could introduce the Bill on the 17th. I was working to a timetable that afforded me another week to prepare for Second Stage and, subsequently, to get the delegated powers memorandum to you. I worked on the memorandum on Tuesday. It is now a priority for me to complete it, and we will have it with you in the next two weeks.

The Chairperson (Ms Bunting): That is great, because it means the Examiner can start her work and inform us in that way.

Mr Laverty: Yes.

The Chairperson (Ms Bunting): That is helpful. You will also appreciate that we are being asked to look at the Justice Act and the Police and Criminal Evidence Act. To be honest, it is "omit this", and we do not know the context in which that is coming. You guys have had this; you know the context, but we do not know what the change looks like, what is currently there and what it will move to. The Committee has had a conversation and considers that a Keeling schedule would be incredibly helpful. If you could see your way to providing it, that would be helpful for the Committee.

Mr Laverty: We have had a conversation with the Office of the Legislative Counsel, and it considers that to be an unusual request. It is not something that the Department has provided. I was not even aware of Keeling schedules as an item until it came to us in correspondence as part of this Bill. It is not something that has ever been produced for any of the 10 to 12 Bills that I have been involved with since devolution. The OLC drafters — one is a very senior officer — have never prepared or produced a Keeling schedule. To produce one would require deflecting their attention away from the drafting of amendments, which the Department considers to be the priority.

Even if we requested OLC to produce something, it is under no obligation, because that is not set out in Standing Orders or any guidance that has to or should be produced. I have given you a short summary of my Civil Service career: I have never seen one. I have never been responsible for producing and sharing a Keeling schedule for any legislation that I have ever worked on, although, without knowing what it was, I have done something similar for legislation I have been responsible for at secondary level. I understand the thought process behind it. It is helpful to see the legislation in its future form in entirety, and it helps with that understanding. However, I am not optimistic that commissioning a report for the Committee on this Bill is something we can do at this stage.

The Chairperson (Ms Bunting): Well, we are still asking for it, Andrew. A number of us have not been through the Bill process before. For some, it is the first Bill, and you have to look at the Justice Act for this, you have to look at the PACE code over here, we are omitting this and amending that, and we have no idea of the setting or what it will look like. A Keeling schedule would be incredibly helpful for us. To be honest, from our point of view, we also have things coming in ad hoc, when our view was just to hold it and make it all ready. We are saying that we would like it and we think that it would be helpful.

Certainly, following a real indictment of a judgement against the Department, a predecessor Committee and the Assembly, we want to ensure that we take forward our due diligence and do as much as we can. We are not asking for it to make life awkward; we are actually asking for it so that we have a better understanding and so that we are not legislating without understanding, because the responsibility is on us to scrutinise legislation and ensure that we fully understand it. We would be remiss in our duties if we did not understand the context in which we were being asked to consider policy proposals on serious issues. I ask you to take that away and consider it. The Committee has been unanimous on it. Certainly, I have pressed the Clerk to pursue that. I ask you to take that away and consider it.

Mr Laverty: I will escalate it within the Department.

The Chairperson (Ms Bunting): Thank you. We can ask no more than that. It may well not have been done in Justice, but other Committees have received them. I think that this is where there were problems previously. Eyes are on this Committee and this Bill. It is in all our interests to ensure that we do it in the right way and CYA-ing it, all right?

Mr Laverty: I will take it away, Chair.

The Chairperson (Ms Bunting): Folks, thank you so much. You have been more than good. We are extremely grateful to you. This has been incredibly helpful. It will help us enormously for Second Stage on Tuesday. It has overrun considerably, but this conversation will help us in the long run as we move through. Thanks very much to all of you and your officials.