Official Report: Minutes of Evidence

Committee for Justice , meeting on Thursday, 19 January 2017

Members present for all or part of the proceedings:

Mr Paul Frew (Chairperson)
Mrs Pam Cameron (Deputy Chairperson)
Ms Clare Bailey
Mr Roy Beggs
Mr S Douglas
Mr Trevor Lunn


Mr David Lavery, Department of Justice
Ms Laurene McAlpine, Department of Justice
Ms Karen Pearson, Department of Justice
Detective Chief Superintendent Hugh Hume, Police Service of Northern Ireland

Key issues and implications arising from withdrawal from the European Union: Department of Justice and Police Service of Northern Ireland

The Chairperson (Mr Frew): I welcome to the Committee from the Department of Justice David Lavery, the director of access to justice; Laurene McAlpine, the deputy director of the civil justice policy division; and Karen Pearson the deputy director, of the protection and organised crime division. I also welcome Detective Chief Superintendent Hugh Hume of the PSNI. I advise you that the evidence session will be recorded by Hansard, and the transcript will be published on the Committee web page today. I invite David to lead off for us.

Mr David Lavery (Department of Justice): Thank you, Chairman. I welcome the opportunity to update the Committee on the Department's work on the justice aspects of the United Kingdom's decision to leave the European Union. Chair, you have already introduced my colleagues. I will just explain that Laurene McAlpine is responsible for coordinating the Department's work on Brexit. Karen Pearson leads our work on the operational aspects in the Department, and Hugh will offer a practical perspective on operational aspects.

I will begin, if I may, by giving you an update on some of the structures that have been put in place to help us to identify the justice implications of Brexit for Northern Ireland and to ensure that those are fully understood and taken into account by those preparing the United Kingdom's negotiating position. The Committee will be aware of the creation of the Joint Ministerial Committee (EU Negotiations). It meets monthly to consider all issues relating to the exit negotiations. The Committee facilitates discussions between central government in London and the devolved Administrations. I accompanied the Justice Minister to a meeting of the Committee on 7 December, when the agenda included law enforcement, security and justice. The Minister used the opportunity to outline the Department's priorities, which are maintaining the common travel area; participation in the European arrest warrant (EAW); continued access to criminal justice cooperation measures; and ensuring effective reciprocal enforcement of civil and family court orders. That meeting concluded with agreement that detailed work would continue at official level. The Department of Justice is engaged in that work with colleagues in Whitehall.

In the Northern Ireland devolved space, an EU future relations project board has been established, which is chaired by the head of the Northern Ireland Civil Service, Sir Malcolm McKibbin. Membership of the board includes the permanent secretary of the Department of Justice. Below that level, my colleague Anthony Harbinson and I have been representing the Department on an interdepartmental coordinating group comprising senior officials from all the Northern Ireland Departments. The role of the group is to identify the implications of an EU exit for Northern Ireland and to oversee engagement with Whitehall. Our Department also participates in a border issues group convened by the Northern Ireland Office that includes representatives from several UK Departments. The group aims to develop a collective understanding of the Northern Ireland-specific border-related issues that need to be considered as part of the UK's exit. It is a useful forum for discussion of the specific challenges that we face compared with the rest of the United Kingdom. The group is complemented by an operational group comprising representatives from law enforcement bodies to consider the operational impact on security and crime.

Finally, there has also been ministerial and official engagement with the Irish Government's Department of Justice and Equality (DJE) under the machinery of the intergovernmental agreement on cooperation on criminal justice matters. Those cross-border engagements have allowed us to develop a shared understanding of the justice and security implications for the island of Ireland. One clear message from our engagement with Irish Government colleagues is that there is a strong commitment to maintain and, indeed, strengthen the excellent cooperation between our law enforcement agencies.

I also want to stress that our focus is not solely on criminal justice. We want to support the valuable arrangements for the mutual recognition and enforcement of civil and family justice. Those provide mechanisms for the resolution of cross-border disputes and the enforcement and protection of legal rights. Given the countless daily economic, social and human interactions across our border, it is essential that civil, commercial and family justice cooperation be maintained.

One less visible but nevertheless important component of our work is the identification and analysis of all EU justice measures and their supporting domestic legislation that form part of the law of Northern Ireland. That includes considering whether a provision would be legally operable following Brexit. The exercise is particularly important for justice measures, where many rely on reciprocity for recognition and enforcement.

As the Committee will be aware, the approach of the United Kingdom Government to the forthcoming negotiations with the European Union became somewhat clearer earlier this week through the Prime Minister's speech at Lancaster House. The Prime Minister outlined 12 overarching objectives for the negotiations, including maintaining the common travel area with Ireland. That, it was suggested, can be achieved while protecting the integrity of the United Kingdom's immigration system. The Prime Minister also gave a commitment that Britain would continue to cooperate with its European partners in important areas such as crime and terrorism and anticipated that our future relationship with the European Union would include practical arrangements on matters of law enforcement.

By way of conclusion, I assure the Committee that, while the exact nature of the United Kingdom's future relationship with the European Union and the implications for Northern Ireland necessarily remain somewhat unclear, the Department is taking every opportunity to communicate our perspective in order to achieve the best outcome.

Chair, that is all that I wish to say by way of introduction. My colleagues and I will now be happy to take questions from the Committee.

The Chairperson (Mr Frew): Thank you very much. Hugh, do you want to say anything from your perspective, or are you happy to move on to questions?

Detective Chief Superintendent Hugh Hume (Police Service of Northern Ireland): I am happy enough to move on to questions.

The Chairperson (Mr Frew): No problem.

Thank you very much, David, for your presentation and your clear, concise and brief opening remarks. It strikes me that we are talking about a very fluid situation, although it has maybe hardened a little this week — "become clearer" might be a better expression to use. Obviously, there is massive interest in the issues here, not least those that you outlined: the common travel area; the European arrest warrant; criminal justice cooperation throughout Europe; the court systems; and the judicial side of things for European law and everything that that entails for everyday living.

I will start by asking you about the practicalities and logistics of what you are tasked with doing — I suppose, Laurene, that that is maybe for you — and what you are here to talk about today. There has been a dialogue about what Brexit is, but there has also been a dialogue about how negotiations will happen. My first question is this: how can we in Northern Ireland be confident that we will be able to have our say and that Northern Ireland will hear what is going on? I know that I am talking in a pretty bland way about a wide spectrum, but how can you as officials be confident that you can leave your imprint on the negotiations and hear what is having an effect on us here and in your world of justice?

Mr Lavery: I will respond preliminarily, and then colleagues can join in. First, there has been no shortage of activity in the roughly seven months since the result of the referendum. I have been involved in 24 or so meetings — roughly three a month — with Executive Departments, Westminster Departments, the Irish Government or some combination of them all. That has included accompanying the Minister to four meetings with the Irish Justice Minister and attending two of the North/South Ministerial Council (NSMC) plenary meetings, as well as the Cabinet subcommittee in London to which I referred, the JMC (EN).

I acknowledge that, for the initial period, it seemed that we were on "Send" but not "Receive" for information. That reflected a variety of realities, including the fact that I am not entirely sure that Whitehall had anticipated the outcome of the referendum and was therefore still building capacity through the establishment of the Department for Exiting the European Union (DExEU). To be fair, they were not quite ready to hit the ground running. They were, however, very attentive, I found, to what we had to say to them and to the efforts that we have made, particularly through the operations group and the border issues group, to stress time and time again in every forum in which we find ourselves the particular significance of the border not only to security but to the wider issues of immigration and customs and the political dynamic flowing from our particular circumstances. Latterly, we have started to receive more information, but it has really been only in the past month or so that we have started to see a flow of information in the other direction. I simply do not know, but, now that the Prime Minister has been so forthcoming, I anticipate that the flow of information ought to improve.

Candidly, there have been challenges for us, given that we have a joint Executive who are not necessarily aligned in their thinking on this. I am not sure that that has been entirely helpful to the flow of information between Departments here. I would at least expect that, now that we have seen a much more explicit statement of the United Kingdom's approach to the negotiations in the Lancaster House speech this week and at the Davos summit earlier today, things will start to free up a little.

A number of position papers have been shared with us in the past month or so on thematic issues such as justice and security that begin to suggest that there is a consolidation of information. I am satisfied that everyone is listening — I have no complaints about that — but just how much influence we will have in shaping the outcome is yet to be seen.

The meetings of the JMC in London — I have attended one — tend to be slightly noisy affairs because the Scottish Government, obviously, have their distinct position on this, as do the Welsh Government to some extent. Throughout it all, however, there has seemed to be a general appreciation in any forum in which I have participated of the particular and acute issues that we are likely to encounter on any decisions made at a UK/European Union level that impact on, for example, customs.

The Chairperson (Mr Frew): Thank you very much. You mentioned all the forums and all the meetings, be they inter-party, inter-government, North/South or with Westminster connections. If we were looking down on the British Isles, what would the lines of communication look like? Are there multiple lines of communication on different themes to Whitehall, or do the lines of communication from all the Northern Ireland Departments feed into one that could be construed as an Executive line of communication that goes straight to Whitehall? What I mean is this: is there a justice line of communication or a social development line to Whitehall, so that all the communication is not being channelled to the one place? Where is the expertise in any given Department? It is where you are. You need to talk to somebody at the other side who has that same capacity.

Ms Laurene McAlpine (Department of Justice): Our key contacts on justice are with officials in the Ministry of Justice (MOJ) and the Home Office. We already have good working relationships with colleagues in MOJ. There have been three meetings with colleagues in those Departments, and DExEU was in attendance. Those are our key lines of communication.

The Chairperson (Mr Frew): That is good. It gives me some assurance. In your opinion, how important is MOJ to the Brexit negotiations? I do not mean to be disrespectful, but the DOJ might be seen as a small fish. The MOJ is much bigger and could fight our corner for DOJ. Is that how it is panning out?

Ms McAlpine: A lot of the issues are in common, because the same justice-type measures apply in England, Wales and Northern Ireland. Issues that we identify are also being identified by the Ministry of Justice, and the Home Office is looking at issues in the criminal justice sphere. It is helpful when we see how their thinking is developing.

The Chairperson (Mr Frew): That is very useful. The one thing that is unique to Northern Ireland compared with the rest of the United Kingdom is the common travel area. How much can we implant into the psyche and mindset of the MOJ on that issue?

Ms McAlpine: I wonder whether the common travel area is possibly more a matter for the Home Office. The MOJ is alert to it as well, and, from the Prime Minister's speech, it is fairly obvious that she is alert to it and to its importance in our context. There seems to be an understanding that the common travel area needs to survive Brexit. It existed pre Brexit, and there is not any obvious reason that it should not survive post Brexit. There might be a bit of a handling issue if customs tariffs were to be introduced between the European Union and the UK: how could that be managed in a way that did not unduly interfere with the freedom of travel within the common travel area? I think that everyone is agreed that we want to keep the arrangements that we have in place post Brexit.

The Chairperson (Mr Frew): I could be wrong, but I suspect that, in the talks — I will not say "negotiations" — the Republic of Ireland Government and the Home Office are probably the main lines of communication. Where do you and the Executive Office sit? Can you hear that conversation as yet, and are you confident that you can have some input?

Ms McAlpine: We have made the point in the context of the Joint Ministerial Committee (EU Negotiations) that the common travel area is a priority for the Justice Minister. Then in our discussions with officials in the Home Office and MOJ, we have made the point that the common travel area is an issue. It is one of those things that they genuinely seem to understand.

The Chairperson (Mr Frew): That is very important, of course. It is not always the case.

Ms McAlpine: No.

Mr Lavery: No. I have a couple of other observations. Although we are not privy to all the conversations that take place in, say, the British-Irish Council (BIC), we are aware of them, even if we are not directly plugged in. Similarly, we are not as plugged into conversations between London and Dublin that take place with the Taoiseach's office or the Department of Foreign Affairs and Trade. Our principal engagement is with the Department for Justice and Equality, where the Tánaiste has gone out of her way to reach out to Claire Sugden to make sure that she understands our concerns. I acknowledge the support of colleagues in that Department in Dublin. I meet my opposite numbers regularly under the auspices of the intergovernmental agreement on cooperation on criminal justice matters, which, as you know, is an international agreement. We have the opportunity to meet regularly, and, as an initial exercise in what I would call group therapy, we spent some time just comparing our analyses to make sure that we had a shared understanding of the legal and other mechanisms that would potentially be impacted by this. That was helpful at a time when Whitehall, as I explained, was still slightly building its capacity.

The Secretary of State for Northern Ireland was centrally involved as a Home Office Minister in 2014 when the United Kingdom opted out of and then opted back into a range of criminal justice and security measures. He is therefore particularly well placed to understand the concerns that we expressed at that time on the utility of the European arrest warrant and how repercussive it would be not to have access to that facility. The Secretary of State is particularly well placed to deal with that challenge because of his background in the Home Office. We almost had a dress rehearsal for some of this in 2014 when we opted out of the European arrest warrant and immediately opted back in again in order to remove a number of measures that were felt to be no longer required. We opted back into the 35 key measures, and that process helped to concentrate minds quite a bit on what we might have lost. That stood us in good stead for this exercise, now that it is for real.

The Chairperson (Mr Frew): You mention the importance of the European arrest warrant and how effective that can be. Will that survive in some reformed or modified fashion post Brexit, or are we looking at something completely different that does the same thing?

Mr Lavery: The blunt answer is that it would not survive if we simply walked away, as the Prime Minister speculated. It is a European Union arrangement, but the Prime Minister, as I noted in my remarks, anticipated a future relationship that would include practical arrangements on matters of law enforcement.

I would be very surprised and disappointed if this is not high up on the list of mechanisms that we would wish to retain access to. There may be a way of achieving that, but it has not yet been defined. The obvious point is that, if we thought it important enough to opt back into it in 2014-15 when we went through the previous exercise, it is unlikely to have been forgotten how important it was and, indeed, how unsatisfactory the arrangements that preceded it were. Technically, you have to be an EU member state to participate in the way in which it is structured at the minute, but there are other ways of achieving it that have not yet been defined.

The Chairperson (Mr Frew): If you have a blank canvas, you can make any model or painting you want, as long as everybody agrees to it and likes the look of it. What is your understanding of any apparatus or infrastructure for the European arrest warrant that we may have to retain or keep, or that could hinder us from keeping some sort of EAW system in the future?

Ms McAlpine: It is a matter for agreement with the European Union. If memory serves me right, there is agreement with two states — Iceland and Norway — where the operation of the EAW has been negotiated. I am not sure whether that is yet in force, but it establishes the precedent that it is possible for countries outside the European Union to negotiate the application of the EAW.

The Chairperson (Mr Frew): That is interesting.

Mr Lunn: Hugh, I read the Chief Constable's evidence to the Committee in Westminster, and he seemed to be saying that the common travel area brought problems and solutions. For security and the risk to the way in which we operate security — it is reasonably successful even though it is such a porous border — which would the police prefer? People talk about a hard Brexit meaning a hard border. It will not happen. It will not be a hard border. We have so many crossing points that it never operated properly.

I cannot see any upside in this for policing and security against international terrorism, international crime and organised crime groups. There will be changes, but I do not know what they will be because we are not far enough down the road. Do you agree that the only change to your ability to provide all your current services, given the level of cooperation that has been built up over the years across Europe and particularly between the Republic and us, is that this has the potential to damage rather than enhance our ability to police Northern Ireland and beyond?

Detective Chief Superintendent Hume: I recognise exactly what you say about relationships, particularly between an Garda Síochána and the PSNI. The relationship is of the highest standard, not just on a personal level, which would have been on traditional levels, but on the process and effectiveness level through the cross-border task force and joint threat assessments about crime. There is a real all-Ireland approach to tackling criminality, which harms all our communities. The support for the PSNI through an Garda Síochána is first-rate — second to none — and I like to think that they would say the same about what they get from us. You are right: the relationship is incredibly strong and focused on dealing with our common threats. I am talking not just about terrorism but about people trafficking, financial exploitation and rural crime — all the issues that affect our communities.

There is no doubt that the loss of the European instruments provides a real challenge for policing on the island of Ireland. Our operational priorities are virtually identical to those of the DOJ. One of our main concerns is the loss of the European arrest warrant. The EAW gives us the ability not just to have returned to our jurisdiction citizens who have committed a crime and fled but to extradite people who continue to pose a threat to our jurisdiction, even though they are wanted by other people. The European arrest warrant provides a speedy and effective way to return people who are a threat.

Mr Lunn: You and I are probably old enough to remember the difficulties over extradition from the South before we had arrest warrants. If we go back to those days, that is a high-risk problem straight away. I understand that, at the moment, the European arrest warrant allows us to obtain people whom we want to talk to fairly readily and quickly.

Detective Chief Superintendent Hume: You are right: the European arrest warrant is an incredibly effective way of extraditing people from the jurisdictions. It is very effective and simple to implement. The PSNI really treasures the European arrest warrant, and I know that an Garda Síochána does as well. The instrument and its ability to deliver practically is exactly what we would like to be replicated.

Mr Lunn: How do you reconcile border security? I am thinking not about UK borders but about European ones. Europe is surrounded by a hard border on its extremities, not within it.

Mr Beggs: It is pretty porous in some parts of eastern Europe.

Mr Lunn: That is fair enough. They are building fences to keep people out and all the rest of it. Basically, it is a hard border with passport control. It probably will not be up to us. I sometimes wonder how important we think we are here. This is a very small part of the European Union and the United Kingdom, but we happen to have a potential border problem. I wonder who will make the decisions. I am glad that all the negotiation is going on. You would think sometimes that this was a problem between Great Britain, Northern Ireland and the Republic of Ireland; it is not. The biggest players and the ones that will make the decisions are the 27 other countries. We will not find out about their input until article 50 is triggered and probably well beyond.

David, you mentioned a border issues group. Is that composed entirely of North and South representation?

Mr Lavery: The border issues group was a Northern Ireland Office series of meetings to talk to Westminster primarily, so that they understood the particular significance in not only the justice space but other areas, such as animal health, immigration, customs and so forth. Karen has convened an operational group that looks at what the border would look like if it became hard or harder than it is. Do you want to say anything about that?

Ms Karen Pearson (Department of Justice): In that group, we need to understand the operational implications of various scenarios. The Prime Minister is giving us more of a feel for what that might look like at the moment. We need to look at whether the common travel area will be there. What will the border look like? Where does the border physically operate? Is it on the physical border or at the airports? Who is doing what? Our concern in DOJ is that quite a lot of the law enforcement input comes from the PSNI, but we are also reliant on national groups that our Minister does not have an influence with, such as immigration and borders and others. We have been talking around scenarios, but, until you get down to what it looks like, it is hard to analyse what the possible implications are for PSNI.

We need to think about the implications for PSNI — Hugh will correct me if I am wrong — on three levels: the PSNI operating in Northern Ireland; the PSNI cooperating on the island of Ireland; and — we have to remember this — joint operations with the police forces of other member states, such as the Spanish police force. European arrest warrants are absolutely vital for us. Lots of the European mechanisms, such as joint investigation themes and the Schengen information system, are very important. We need to understand what the loss of those would mean for law enforcement.

Mr Lunn: I read the list: it is enormous. It is terrific that there is such a high level of cooperation. I really fear for some of this. Depending on the nature of our negotiations with Europe, whatever arrangements there are would have to be beneficial to Europe as well as us in order to maintain them.

Mr Lavery: The other member states are net beneficiaries of the input that the United Kingdom makes to all those arrangements. There would be a lot for the remaining member states to lose if they simply pulled the shutters down behind us. The United Kingdom is a significant contributor to the security and justice infrastructure in Europe. We are all, metaphorically, walking around the border. To me, there are three reasons to stop somebody at a border. One is security, although we do not do it at the minute; we manage security without physically having a hard border. The second reason is immigration, and there may be ways of securing that if it is the border of the common travel area, for example, not the border on the island of Ireland. The third one is customs, and we could trip over that one here. I simply do not know what the solution to that will look like. People point to the arrangement between Sweden and Norway as an example of a border with relatively little friction — that is the word that is being used. You can drive your private car through without being stopped, but, if you are driving a goods vehicle, there is an electronic tracking mechanism and a facility for spot checks. We need to see the emerging solution in each of those three areas, and the one that I perhaps know least about but that we need to be no less attentive to is customs and tariffs. The Prime Minister has said that we are leaving the single market and the customs union, so that seems to suggest that there will be some arrangement, whether or not it has a physical expression, between the South of Ireland as a member state and us.

Mr Lunn: I am nearly done, Chair. You set great store by the maintenance of the common travel area, which dates from 1921; is that right?

Mr Lavery: We think that it is from 1922.

Mr Lunn: From the foundation of the state. I can see why the common travel area was maintained when the European Union was created; I cannot see why it should be maintained when we are leaving the European Union. That is my problem. That is just an observation, but it is so important. Do you get the feeling that, when negotiations start, the UK Government — I know that Theresa May threw it into her speech the other day but, frankly, so what? — or the British, if I can call them that, will understand the importance of the common travel area to the island of Ireland?

Mr Lavery: I have not observed any lack of attention to it. Not only does the Prime Minister set great store by it but we do, as do the Westminster Government, and I have no doubt whatever that the Irish Government do. It is about the ability to travel, work, reside — effectively, to have common shared citizenship to some degree — and the right of an Irish citizen to live and work in England and to vote.

Mr Lunn: Steady on, now.

Mr Lavery: It is quite a fundamental sharing of a common space, if you like, and it predates our current problems.

Ms McAlpine: A lot of people travel across the border in both directions for work.

Mr Lunn: It is 30,000 or 40,000. It is that important, but I wonder how important it is to Europe.

Ms McAlpine: It was acknowledged in the Treaty of Amsterdam that there were special arrangements between the UK and Ireland for immigration facilities.

Mr Lunn: When we were both European Union members.

Ms McAlpine: Yes, but it was in the context of neither country taking part in the Schengen arrangement and they recognised that we had this common travel area.

Mr Lavery: Certainly, you are right on one point, Mr Lunn: Ireland's ability to retain the common travel area, as I understand it, will require the support of the other 26 member states because it is a matter within the competence of the union. We might want it, and they might want it, but it will require the agreement of the other 26 member states.

Mr Lunn: It is the border of the European Union; it is not the border between North and South.

Mr Lavery: Yes.

Mr Beggs: Thank you for your presentation. As we go forward, it is important that the border is not abused by criminals for their advantage; that has to be the focus for everyone. There are risks to Northern Ireland, the United Kingdom and the Republic; it can work either way. You mentioned the European arrest warrant. There is also the Europol information system and the European criminal records information system. You mentioned that Norway already had a bilateral arrangement with the European Union to buy in. Do all those systems have bilateral arrangements? Is there already a precedent that countries outside the European Union can link in? To me, that is the best model for allowing cooperation to continue.

Ms McAlpine: We cannot say that for all the measures. The arrangements in the European Union are based on mutual trust between the member states. They are quite careful about negotiating arrangements with third-party countries. Other countries such as Australia can avail themselves of the Europol facility.

Detective Chief Superintendent Hume: The US and Australia are members of Europol.

Ms McAlpine: There is scope for negotiation, but it is not necessarily in place for all these measures. The Department of Justice is looking at 67 criminal justice European Union measures. They do not all apply to countries outside the European Union.

Mr Lavery: We have not audited what applies to whom, but Europol is clearly capable of embracing what they call "strategic cooperation agreements". At the moment, the participating countries include Turkey, Ukraine and Russia, so they draw their net quite widely. We mentioned Australia: there is also Colombia, Switzerland and the United States. There are mechanisms, but I am simply not sure whether they have been availed of in each instance.

Mr Beggs: There was the recent high-profile case of the computer hacker in London — he got into the CIA or something — who was extradited to the US. There was an extradition arrangement between the UK and the US. The UK is a member of the European Union, and it had an arrangement with a country outside the European Union. Is there anything to stop the Republic of Ireland having a separate treaty with the UK for such an extradition arrangement?

Ms McAlpine: There are two extradition arrangements. One is under the European arrest warrant, to which European member states are party, and the other is under the 1957 Council of Europe European Convention on Extradition. That is probably the one under which the American extradition took place. If, for some reason, we were no longer party to the European arrest warrant mechanism, it would be a matter of the European member states being designated under our domestic legislation, so that we could operate an extradition arrangement under this other part 2 arrangement. It is not as effective or efficient as the European arrest warrant.

Mr Lavery: It involves a political stage as well where, as I understand it, a Minister has to make a decision, whereas the EAW is purely a judicial function.

Ms McAlpine: The other one comes through the Home Secretary.

Mr Beggs: Have conversations opened up already between you, the Republic and, indeed, any members of the European Union around this area?

Ms McAlpine: It would be difficult for Ireland to start to have such bilateral discussions with the UK or Northern Ireland. Europe will probably have to speak with one voice on this.

Mr Beggs: You see the difficulty. We are talking about negotiating with Europe, not a neighbour where there is a mutual advantage.

Mr Lavery: Yes.

Ms McAlpine: The European arrest warrant will be important not just for Northern Ireland but for England and Wales.

Mr Beggs: I fully appreciate that, but I am looking after Northern Ireland.

The Chairperson (Mr Frew): East Antrim, Roy. [Laughter.]

Mr Lunn: If we had to negotiate a new extradition treaty either with Europe or particularly with the Republic, would it not take us back 40 years? It would go back to the days when a judge in a Dublin court could hold up an extradition for five years because the paper was the wrong colour. Is that what we are looking at? Is it possible?

Mr Lavery: Hopefully not. Like you, I am old enough to remember that that created an almost toxic relationship. The backing of warrants system did not work and was perhaps a source of tension, to say the very least, between our respective systems. That is a point we made regularly and often two years ago when the United Kingdom was thinking of coming out of the European arrest warrant system. I noted that the Secretary of State, at the JMC meeting I attended with the Justice Minister in December, volunteered that information himself, so that is why I said that I think the Secretary of State currently in the Northern Ireland Office gets it as far as EAW is concerned, what went before it and why it was so unsatisfactory.

Mr Lunn: He is not old enough to remember.

Mr Lavery: He is not old enough to remember, but he certainly listened, and there is no doubt that is something to which acute attention is being paid. There is no fallback option. In the South, the pre-existing legislation has been revoked; there is nothing. You would have to start again.

Detective Chief Superintendent Hume: Chair, I would also mention that, on a national, UK level, the country from which Britain seeks the second greatest number of extraditions is Ireland, so, even on the world stage, the extradition treaty with Ireland is important for the United Kingdom. It is important not just for Northern Ireland but for the United Kingdom.

Mr Lunn: That is under the European arrest warrant.

Detective Chief Superintendent Hume: Yes. It is the second most extradited-from country for the United Kingdom, so it will be at the top of the MOJ's list.

Ms Bailey: I want to look at the civil and family courts and the processes there. I was just wondering whether you could give us an outline of what issues you are discussing at the minute.

Mr Lavery: I will ask Laurene to do that, if I may.

Ms McAlpine: There are a number of EU measures that support the recognition and enforcement of judgements in the civil and family area. For example, there is something called the Brussels I regulation (recast), which allows decisions in a court in Northern Ireland to be enforced in a court in a member state and vice versa. There is something called the maintenance regulation, which allows someone who was entitled to maintenance from a spouse residing in another member state to pursue the payment of maintenance. There are also arrangements that allow for a public authority in one member state to arrange for the placement of a child in another member state. There are maybe only a handful of those cases. If you had a child in, say, Newry who was the subject of some concern, they could be placed with their grandparents in Dundalk. It is important to have that facility, and it is available under some of the EU mechanisms. There are other things like European small claims proceedings, which allow people to take claims for relatively small amounts of money between member states. There are other provisions for the enforcement of uncontested amounts within member states. There is a lot of traffic, and citizens need to be able to rely on those types of provisions in order to go about their daily business.

Ms Bailey: On the back of the EAWs, I hear that the British Government at Westminster and here are looking at that, and the conversations seem to be quite advanced. What reaction or conversations are you getting back from the EU on this? Are they as committed to retaining it or having it high up the agenda? Have they bought in to trying to keep us part of the process?

Mr Lavery: To be honest — I am not being evasive — I do not think we have any visibility on that. We are talking to London, and London is talking to Brussels.

Ms Bailey: No feedback?

Mr Lavery: Obviously, the Executive have an office in Brussels, but there is a certain protocol we are working through. It is the UK that is in negotiation with, as you will understand, the European Union. We are making every effort to fully inform the United Kingdom's understanding and position, and I have no doubt that has been effective.

As I said, Europe gets as much, if not more, in justice and security from the United Kingdom as we get from them. I would be really surprised if they do not see that as something they wish to retain, whatever they might say about trade and tariffs and all the rest of it. That is something in which Britain has a unique intelligence role to play for the security of Europe and all that goes with it, including all the associated infrastructure, whether it is in counterterrorism, organised crime, people smuggling or whatever. I would be very surprised at that, and it would almost be an act of self-harm for Europe to set their face against it, but I cannot give you any direct evidence, because, as you know, they are almost obsessed with not negotiating until article 50 is triggered. All that is happening now is conversations in anticipation of that.

Ms Bailey: I just ask on the back of the comments made by the Maltese president.

Mr Lavery: Yes, exactly.

Ms Bailey: I was interested to hear you say you are working out scenarios for all sorts of border issues — hard, soft, invisible and the not invisible. That is the right thing to do, of course. I think of farmers or other landowners who have land that straddles both states. Are any negotiations, conversations or consultations going on with them on what their views are and what the impact will be on them? Are they being brought into this?

Ms Pearson: Not in the justice field. I have no doubt that colleagues in Agriculture might be thinking about those issues, but that is not something for us. You are absolutely right: the border arrangement we end up with has to be the starting point for our analysis of what might happen to us on the other side of Brexit on crime in Northern Ireland and on an all-island basis.

I will just mention one point. If it ends up that we need more visibility for law enforcement, we will need to think carefully about the impact on confidence in policing. That has been very hard-won here. We have high levels of confidence, and, at the other end of this, we need to make sure that the way the public engage with and feel about our police service has not been damaged. That is an important point that we should not lose in the discussions.

Ms Bailey: Has there been any assessment done of the security risk or the threat of a possibly reinvigorated border campaign by terrorists or paramilitary groups?

Detective Chief Superintendent Hume: Our line on this is that, until we know what it will look like, it would be pre-emptive to start thinking about a threat assessment around the border.

Ms Bailey: It has not been done at all.

Detective Chief Superintendent Hume: At this stage, it would all be aspirational. The Prime Minister said yesterday that she wanted to move away from the customs union but wants zero tariffs. If there are no tariffs or issues for customs, the border will look totally different than with World Trade Agreement tariff implementation. It would pre-emptive at this stage to start thinking about that before we have a clear idea. We have not even officially notified that we are leaving Europe. It is just too far off at the moment.

Ms Bailey: Are there discussions, then, about putting customs controls in Irish ports and airports in the South?

Mr Lavery: I am not sure that customs is the focus, but there is an ongoing dialogue that predates Brexit between the United Kingdom and the Irish Republic about the movement of people in and out of our —

Detective Chief Superintendent Hume: Border Force is based in Dublin Airport already.

Mr Lavery: You touched on the possibility of a re-emerging, perhaps, dissident or other threat, but there is also the fact that crime tends to exploit opportunities. If tariffs are reintroduced and there is an imbalance, there are opportunities for smuggling and so forth. We are all acutely conscious of the unintended consequences of this for our country.

Going back to your earlier point, I should say that agriculture is undoubtedly one of the most impacted sectors, and I know that the Department of Agriculture is extensively involved in this, because so much farm income is directly derived from the union under the common agricultural policy. I note that Department is one of the Departments represented on the new group that Sir Malcolm McKibbin has established to really focus concentration. I am on the wider group that involves all the Departments, but the membership of the future relations project board is focused on Justice, Agriculture, Economy and Finance, for very obvious reasons.

The Chairperson (Mr Frew): Just on that point, 775 people were detained at Northern Ireland ports in 2015-16 for immigration offences. That was an increase of 66% on the previous year. Have we spotted any trends in the Brexit referendum year? Are we worried about anything there? Have we seen trends, dips or surges?

Detective Chief Superintendent Hume: Immigration is primarily the responsibility of the immigration service, but PSNI is co-located at the ports with the service. We worked with it on Operation Gull, which is the examination of it. I suppose that, at this stage, we are not seeing any particular trends apart from the general upward movement. None of the arrests or detentions are necessarily directly linked to Brexit. It tends to be a number of people from outside the European Union who are detained and people who have been deported from the United Kingdom and are attempting to regain entry.

There is an uplift; that is certainly true. The Irish ports have come under some greater notice, perhaps, from some people, but I would not say there is a trend or any exploitation of Brexit specifically; it is not driving it per se. Ireland is not part of Schengen, so they have border controls with Europe already. So, no, Chair.

The Chairperson (Mr Frew): I find the whole issue, debate and era fascinating. I suspect a lot of history books will be written about it over the years that people will read. I am trying not to be political, but it has been very clear that the Republic of Ireland's place in Europe — of course, it is a net beneficiary — has always been attached to the British Isles. It entered Europe at the same time and has stayed out of Schengen. I do not want to start a diplomatic surge or anything like that, but what is the mindset of the officials or colleagues you deal with in the Republic of Ireland? It would be quite normal to have a nervous mindset at this time, but that is key too. What if they make changes? I am not suggesting it would happen, but imagine the Republic of Ireland joined Schengen because they are not attached now to the British Isles, if you like, metaphorically. That would change the whole dynamic of any negotiation we would have with Europe. Whilst I am not suggesting any of that would play out, is it being factored into both sides and to everybody involved — all the diplomats and officials — that there may be a really fluid situation that is more complicated than just a European stance and a UK stance? There could be a whole lot of wee plays to play out.

Mr Lavery: I am wondering who will volunteer to answer that.

Ms McAlpine: It is very hypothetical. There are, I think, four or five countries that are still not in Schengen, although some of them are probably looking to join. I obviously cannot speak for the Irish Government, but it might be awkward if they ended up as the only country in the European Union that is not part of Schengen.

We are not looking at that. At the minute, we are just concentrating on what we do when the UK exits the European Union. What happens if Ireland joins or does not join Schengen is another debate that we are not engaged with at the minute. I do not know what Ireland's position will be.

The Chairperson (Mr Frew): I understand why you would not be engaged because you have enough on your plate, but someone must be keeping an eye on that. Someone must be watching for algorithms in people's minds on what way things will go.

Ms McAlpine: I imagine Ireland is doing that.

The Chairperson (Mr Frew): Is someone on the UK side also watching the Republic of Ireland's stance on all this?

Mr Lavery: No doubt our ambassador in Dublin is acutely sensitive to those issues. As you said, it is fascinating. Whilst we are preoccupied with the immediate issues of the border, one might speculate about the long-term consequences for the patterns of relationships that have existed and that predate Britain and Ireland's joining the then European Community. But it is above my pay grade, and I am not going to speculate. I have read the speculation that the irresistible logic is that Ireland should itself leave the European Union, but I have never heard anyone in Governments suggest that is in any sense desirable. As we will, hopefully, have an opportunity, depending on how things play out, to come back to your Committee and meet you periodically about this, it will be interesting to see how things play out at that sort of macro level. Apocryphally, as the Chinese are meant to have said about the French Revolution, it may be too soon to tell how it has turned out. It may be a wee while yet.

Mr Lunn: Thanks for bringing me in again, Chair. This is interesting. From the PSNI point of view, we have always had smuggling. It is a well-established tradition in Ireland across the border, and we have it now because of currency differences and VAT rates, I suppose, and differential prices. As this takes shape, whether it is a hard border or a soft border or whatever, there will eventually be some tariffs introduced; it is absolutely inevitable. Have the police factored in that there is potential for quite a substantial increase in the smuggling trade as a result of all this?

Detective Chief Superintendent Hume: You are right about the all-Ireland nature: 43% of organised crime by gangs in Northern Ireland has a cross-border dimension. Some of that is drugs-based, and some is commodity-based or based on human trafficking. There already is a well-trodden path between the two jurisdictions on criminality, so any separation on immigration or tariffs will certainly create an opportunity and, in the mindset of our crime gangs, an intent to perhaps exploit those tax or immigration differences. As well as the other criminality they are involved in, there will just be another commodity tacked on to their existing activity.

Mr Lunn: Commodities are what I was thinking of — retail goods, really, and, I suppose, the old favourite: cattle and pigs.

Detective Chief Superintendent Hume: Of course, that could be into the Republic as opposed to into Northern Ireland.

Mr Lunn: It depends on the state of play, but it has always been with us. It has the potential to get a lot worse as tariffs rise.

Detective Chief Superintendent Hume: It is something we have identified and recognised, and we are engaging with our partners to understand the threat around it. As you say, already, through the cross-border task force, a lot of work goes on on that activity as we speak.

Mr Beggs: I have a brief follow-on question from the Chair's discussion of Schengen and the potential for the Irish Republic to join it. Mr Lavery, if Ireland were to join it, I assume they would have to protect it, so would they have to build a wall and pay for it?

Mr Lunn: Build your own.

Mr Lavery: It is not on my to-do list to have a developed position on that. That might be compelling logic, but —

Mr Beggs: You do not think it will happen.

Mr Lavery: I think perhaps not in the short term. Going back to the Chair's speculation, maybe I am stepping out of line here, but it would be profoundly unhelpful, having normalised our relationships on this island and between Britain and Ireland, if this had some adverse impact on that in a way that none of us — probably literally — wanted or anticipated. I have no doubt that is being thought about, and I have no doubt colleagues in Dublin are acutely sensitive to it.

Ms Bailey: Just a quick one. What are the plans come 2 March, when we have our elections and cannot form another Executive and have no Minister? What will be the future of these negotiations then?

Mr Lavery: They will continue at a UK level unquestionably. The member state is obviously the United Kingdom, so it will be unfortunate that we might not be represented at an Executive level in the discussions to the extent that the other devolved Administrations in the United Kingdom will be. I have no doubt that we, as officials, and Hugh in his role will continue to inform the discussions taking place. We will lack, maybe, political direction, but, as I sort of alluded to, the fact that we do not have a common position in the Executive means that it will be unfortunate but will be, perhaps, less repercussive than it might have been had there been a strong, united position. We have not developed what they call the "ask" for Northern Ireland on this, simply because we are not quite in the same place at an Executive level, but, at official and agency level, particularly in the PSNI, there will be no let-up in the conversations we are having to try to shape and influence not our position but the United Kingdom Government's position and, hopefully, a complementary position by our colleagues in Dublin.

Ms Bailey: Good luck.

Mr Lavery: Thank you.

Mr Lunn: So say we all.

The Chairperson (Mr Frew): OK, that is fascinating. We could probably keep you here all day, David, but we will not; we will let you go. It just remains for me to say that we wish you all the best. Of course, this will be the last meeting of the Justice Committee, with everything that that means. As the outgoing Justice Chairperson, I wish you all the best not only in the negotiations and the part you will play, of course, but in all the Justice world. We know about the work you do, and we pay tribute to it and thank you for it. All the best.

Mr Lavery: Perhaps I could presume to say on behalf of the Department that we have appreciated the way the Committee has engaged with us. It has been constructive from day one. There may be some things that we will not miss, but the Justice Committee has an important voice in shaping the future policy and legislative justice environment, and we hope to see you back in some way, shape or form reasonably soon. Thank you for the very civilised and professional way you have dealt with us, and we wish you luck also.

The Chairperson (Mr Frew): Thank you very much.

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