Official Report: Minutes of Evidence

The Chairperson (Mr O'Toole): I welcome from the Departmental Solicitor's Office (DSO) Joanne Timoney, deputy departmental solicitor, and Ross Thompson, director. I invite Joanne to make a brief opening statement. In saying "brief", I do so not to be rude but purely so that we can get to questions and talk to you.

Ms Joanne Timoney (Departmental Solicitor’s Office): Thank you, Chair, and I thank the Committee for having us here this afternoon. We understand that the Committee wishes us to speak about the particular matter of registration of deaths and stillbirths and that you have concerns beyond that. We propose that Ross speak to that matter and that I address the two concerns that have been raised about capacity generally. I will take your opinion on whether Ross or I should go first.

The Chairperson (Mr O'Toole): I suggest that Ross go first on the specifics of the Bill and you then cover the broader pressures.

Mr Ross Thompson (Departmental Solicitor’s Office): The Bill is well under way. We do not have too much of a role in the development of the Bill; it is with the Office of the Legislative Counsel (OLC) and the Department. Our involvement comes in the secondary legislation that I referred to in the written briefing. The red book sets out the different roles.

The Chairperson (Mr O'Toole): For the purpose of public information, will you briefly explain, for anybody who is watching who does not know, the difference between the Departmental Solicitor's Office and the Office of the Legislative Counsel? Even for MLAs, that kind of thing is not often unpacked in clear terms.

Mr Thompson: No problem. Staff of the Office of the Legislative Counsel are based in this Building. They are drafters, usually lawyers by trade who transition to become drafters. They were called draftsmen prior to the adoption of gender-neutral language. They write primary legislation: the Bills that are debated in this place and then become law. The Departmental Solicitor's Office supports the core Departments in the scrutiny of secondary legislation. That is subordinate legislation that has status only because an Act has given a Department power to pass secondary legislation.

Ordinarily, the big framework for implementation is in the Bill, and the operation of certain figures or fees is done through secondary legislation. In this jurisdiction — Northern Ireland — Departments are responsible for the drafting of their secondary legislation. They provide a copy of that to DSO for scrutiny and review. We give clearance for that to be laid before the Assembly. Statutory Committees are supported by the Examiner of Statutory Rules, who advises them on whether legislation is within vires, in the proper form and so on.

The Chairperson (Mr O'Toole): You do not have an automatic role in all primary legislation.

Mr Thompson: No. From time to time, we prepare a competence assessment. The Northern Ireland Assembly was created by primary legislation from the UK Parliament. You will be well aware of this, but, for people at home or anybody watching, there are certain things on which we cannot legislate. You will have seen the recent Mediahuis judgement, where there was a human rights consideration under the Human Rights Act. The judge decided that it was outside competence, so a portion of that legislation was disapplied. DSO's role is to try to provide a competence assessment; the Attorney General's office has a role there as well.

The Chairperson (Mr O'Toole): Thank you. That is really helpful. I will let you get back to making your statement. That might have seemed basic, but, hopefully, it was useful. Have you a bit more around the DSO?

Mr Thompson: I have put in the briefing anything that we wanted to say. I am happy to discuss what is in the briefing.

The Chairperson (Mr O'Toole): In that case, we will go to questions. First, we have Diane, Deputy Chair, and then Paul Frew.

Ms Forsythe: Thanks for outlining the difference between the two of those, because it is important to get that clarity. When we are looking at it and asking questions, we think that DSO is doing everything. I want to ask about the adequacy of staffing and resourcing across DSO and OLC.

Ms Timoney: I can speak to DSO. We are aware from questions in earlier Committees that there is, perhaps, a concern about the capacity of DSO and Departments in bringing forward good legislation and in identifying at an earlier stage a particular issue with a particular legislative route. We recognise that there is always room for improvement. Our capacity is a fairly fixed resource. We have continually fluctuating demand from multiple areas in all Departments, so we are always managing that, which we do through key engagement with the Departments. The focus, as a management board, is on increased client engagement and demand management in order to provide a more dynamic and flexible service. There are already strong examples of client-relationship management throughout DSO and relationships of trust with the Departments. The focus of the management board, directed by the departmental solicitor and led by me, is on increased engagement at the right level. That will vary for the divisions within DSO. We have four advisory divisions, a commercial and property division and a litigation division. It also varies with clients. The key purpose is for us to engage with clients in order to talk about improvements to service and — getting to your point — to make them aware of the level of our resource and the fact that, in order for us to always be working on their priorities and most up-to-date instructions, we need to be engaging so that we can move to those other matters, if needs be.

Ms Forsythe: I want to ask specifically about the process around the proposed electronic registration of deaths and stillbirths Bill. From the outside looking in, it is about the electronic operation of a registration process. That has been happening: it was happening and continues to happen under the extension of the COVID regulations. The process is there: it is established, and the detail is there. I do not understand why that could not have been lifted and moved straight across into legislation. It is succinct, concise and quite basic and easy to understand. We understand what the legislation is doing. Will you explain why that could not have been progressed more quickly?

Mr Thompson: In 2022, we were asked a question and given a series of options that the General Register Office (GRO) was considering. One of those options was to use the Electronic Communications Act (Northern Ireland) 2001 to convert the process in the 1976 and 2012 regulations to digital. The legal advice at the time was, "That should be possible, but I need to reserve my position until I see a set of regulations and a draft order". The fact that it had happened in England was an influence. There was a thought process of, "OK, it's been happening in other jurisdictions. We have similar powers. It really should be OK". We did not see a set of draft regulations until, I think, 29 May 2024. There is another party to this — an external drafter. I will explain why there is an external drafter.

As I outlined, Departments are responsible for drafting their legislation, but, in that case, it was an unusual application of powers. It was not the usual thing for GRO to do; it was going to use the Electronic Communications Act to digitise the process. The Department asked a drafter for additional support with that. The drafter sought DSO input. When he first supplied the regulations to us, he flagged that he thought that there was an issue with the vires. That issue was that the process was changing. Under the 1976 Order, there were three parties in the process, but, under the proposed order, there would be two parties. Changing the nature of the process means that it is not a straight conversion. Changing the process fell outside the vires, or the powers, of the Electronic Communications Act. The Act does not say, "You must convert the process truthfully". It says, "You can make anything that was done this way, that way", but, by changing the process, the proposed order fell outside the narrow scope — what is called the ambit — of the 2001 Act. That became apparent to DSO only when we first saw the draft order and draft regulations. Unfortunately, that was after the commitment had been given to the Committee.

Ms Forsythe: I appreciate that. Thanks very much for the clarity. We had been advised that it was a simple thing to take forward, and then it was not. For us as a scrutiny Committee, that flagged a significant concern. Can you confirm when, you think, we will see it come forward?

Mr Thompson: We are taking a back seat in the process. The vires point will more or less be covered by primary legislation. It is well within the Assembly's competence. I think that Dr Wales gave evidence suggesting that, when you add in the baby loss certificates, that will make the process a bit longer. I spoke to the drafter in OLC about getting the paper that the departmental Assembly liaison officer (DALO) provided cleared, and he was of the opinion that the drafting is well advanced. I was present when the Minister gave a commitment — a hopeful commitment, if you like — that it will be introduced in the first week in January. Certainly, I have not heard anything that runs counter to that.

Ms Forsythe: That is great to hear. It is good, stand-alone legislation. I think that we all want to see it up and running as quickly as possible. Thank you.

Mr Frew: Thank you very much for your succinct answers. You have been very helpful. I have been really concerned about the capacity issue, but, before I go on to that, I want to talk about the specifics. From what you say, the Department, or, in this case, the GRO, stated that it wanted to amend the Electronic Communications Act (Northern Ireland) 2001.

Mr Thompson: It wanted to use the Act to amend the 1976 Order.

Mr Frew: Sorry, it wanted to use the Act, yes.

Mr Thompson: That was one of the four options that it had.

Mr Frew: Given that it had four options, who advises it on which is the best vehicle to proceed?

Mr Thompson: That is, indeed, our role. The adviser said, "Yes, I think that that is possible", but, until you see things written down, it is really difficult. I am the director of the division in which that work was done, but I am not the person who did the work. Looking at it, you would have thought that it was to be the beginning of a process, but then we did not hear much about further development. The next thing that we heard was, "We are going to get a drafter. Let's proceed".

Mr Frew: Let me tease that out a wee bit. I am not sure whether a departmental official is best placed to even set those parameters or draw up that list of options. Surely, a Department should say, "We want to do a, b and C. We want it to be law. We need advice on how to achieve that". If that is through secondary legislation, using existing legislation, you guys do it. If it is primary legislation, OLC does it.

Ms Timoney: That is what happened in this case. That is what you are getting to: that advice was sought, and the DSO raised various matters in addition to the vires.

Mr Frew: For the GRO to even have come up with the Electronic Communications Act (Northern Ireland) 2001 strikes me as being a bit off.

Mr Thompson: It has been used a few times. If you ask anybody, "What is the best way to make this digital?", they will say, "Use the Electronic Communications Act". Departments have used it. Another piece of secondary legislation is working its way through and may come before the Committee in due course. It uses the same enabling legislation but will not run aground on the same issue.

Mr Frew: So, things move on a wee bit, and you guys advise the GRO. It could be any Department, of course, but we are talking about this specific legislation. You then decide that the best course of action is to subcontract it to a drafter.

Mr Thompson: So —. I will let you finish the question. Sorry.

Mr Frew: Why was that decision taken? Why was there not the capacity at the point when DSO had already advised the GRO? Why did you guys not proceed in-house?

Mr Thompson: The red book sets out people's responsibilities and roles. Ordinarily, it is the Department's officials who draft, so, when the Department approached DSO on 29 March, it was with a view to —. We have an open list of drafters whom we can put Departments in touch with. It is the Department's responsibility to draft the legislation. The Department asked us, "Can you put us in touch with a suitably qualified drafter?" That was the engagement: the beginning of the 11 and a half weeks. That was its particular role.

Ms Timoney: In a situation such as this, speaking generally, we can assume why a drafter would be used: it might be because the legislation is slightly more complex, but complex in the sense of taking up more of the Department's time. So, it is more practical and efficient to say, "Let's send it to a specialist drafter who will be able to do this." It takes much less time, and that departmental official can then work on something else.

Mr Frew: Are there many drafters of that ilk kicking about the place?

Ms Timoney: How many are on the list?

Mr Thompson: There are five on the list. We have re-advertised the position; there are not many.

Mr Frew: OK. You have 179 staff in DSO, which is the Departmental Solicitor's Office. I suspect that not all those people will be drafters.

Ms Timoney: Correct.

Mr Frew: What is the breakdown between drafters and solicitors giving advice? What are all your functions, if you like?

Ms Timoney: Of that number, approximately 37 administrative or support staff are essential to the provision of our services. In addition, we have the six divisions. There is the litigation division and a commercial and property division — that is my substantive role and where I have come from. There are four advisory divisions. Even when you think about that, only four of the six divisions are advisory, and, within those, the advisory lawyers perform various functions. Ross, I do not know whether you want to speak to that.

Mr Thompson: I will clarify the difference between the drafting and scrutiny of legislation. Under the red book, we do not do any drafting. That is the way that it has been since I joined the service. We provide the scrutiny of the legislation, so we check and ask, "Are your powers right?" or "Does this achieve what the Department thinks that it achieves?" Then, the functions are more or less the same as those of the Examiner of Statutory Rules. As to the people who provide scrutiny of legislation, I would say that there are around 20 to 25 lawyers in each advisory division. They are at various stages of training. Some have joined quite recently. I think that a reasonable estimate — I am talking off the top of my head — would be around 50%. So, there are around 40 to 45 staff across the office.

The Chairperson (Mr O'Toole): This is just a practical point. Do you have figures on the DSO headcount? If you do not have them with you, could we have them for over, ideally, the past decade? That would be useful, if it were possible to get them. I just want to know how big the headcount of DSO is now, compared with a decade ago. Go ahead.

Mr Frew: That was to be my final question. I was going to ask for a comparison over the past number of years —

The Chairperson (Mr O'Toole): I am sorry, Paul. That was really cheeky of me.

Mr Frew: — especially if the numbers are down. You would imagine that people drift away, just as staff in this Building drift away to other legislatures. Do you crank up the numbers near the end of a term? Are your numbers fluid and agile in that way?

Ms Timoney: I do not have 10 years' figures; just the figures for this year and last. At the minute, we are in a fairly steady state. The total, including vacancies etc, is 186 at the minute, and, last year, it was 180. We are working with a fairly fixed resource and are, I would say, comfortable within that. It is more a case of how we manage the various competing priorities across every area of every single Department. That is what we are getting better at, and our focus is on using the resource that we have.

Mr Frew: Do Departments write up their own secondary and primary legislation?

Mr Thompson: No. OLC drafts primary legislation.

Mr Frew: You guys in DSO scrutinise secondary legislation but not primary legislation.

Mr Thompson: That is correct.

Mr Frew: Do you have a priority list of which secondary legislation you will look at at any given time, or is it first come, first served?

Ms Timoney: That is what I was speaking to in my opening piece. Talking about lessons learned from this process etc, I think that you cannot engage enough with clients.

It is a matter of engaging across the piece and across the Departments. As I said, my background is in the commercial and property division, which is slightly different from the advisory function. We have the benefit of dealing with particular units within a Department, so it is slightly more complex for advisory. That is what we are working on for the rest of this financial year as part of our business plan. The point is that we go with whatever client demand determines as a priority, but we tell clients what the resource is and that we need to work that out. We need a shared language around priorities because, of course, everything is a priority.

Mr Frew: This is my last question, Chair, I promise. What Department is the Departmental Solicitor's Office accountable to? Is it Finance and the Finance Minister as opposed to the Executive as a whole?

Mr Thompson: Yes.

Ms Timoney: Yes.

Mr Frew: OK, thank you.

Mr Carroll: I did not think that the DSO would have 179 staff. I am not saying that it should not have that number, but I was surprised by that. You are doing important work. Is that the total number of staff providing legal advice across Departments, or do the Health and Justice Departments have their own in-house solicitors and legal teams?

Ms Timoney: The Department of Health —.

Mr Thompson: Do you want me to answer that?

Ms Timoney: Yes.

Mr Thompson: DOJ has retained some staff from before the devolution of justice. Otherwise, DSO provides legal advice, but we always do advisory work for DOJ. The vast majority of lawyers who support Northern Ireland Departments work in DSO.

Mr Carroll: OK. However, there may be a handful in each Department.

Mr Thompson: Only in the Justice Department.

Mr Carroll: Only in the Justice Department and no other. So, if the Health Minister needs legal advice, he comes to DSO.

Ms Timoney: Yes, that is correct. Our advisory teams are set up so that each one has a group of Departments. There is no real linkage to it, but, for example, one advisory team has Infrastructure, Education and Health, and it will have those specialisms.

Mr Carroll: Are there roughly 25 solicitors in those?

Ms Timoney: Yes. Litigation is slightly different.

Mr Carroll: I appreciate that. That leads me to my next question. I declare an interest as someone who is trying to draft a private Member's Bill (PMB), as I did in the previous mandate. I do not want to give you extra work while you are with the Committee, but it seems strange to me that, when Members are drafting PMBs, they usually have to go to people in Britain who, although well able, might not be as familiar with the legislation as your solicitors would be. I am not in the sector, but, looking in from the outside, it appears that it would be quicker and more cost-effective to have DSO properly resourced to carry out that function in order to help MLAs, me included, to develop PMBs. There is a bit of self-interest there, but it is about speeding up the PMB process. Do you have a view on that, or have you been asked to look at it?

Ms Timoney: From my perspective, our clients are the Departments. It is the Departmental Solicitor's Office, so the Departments come to us for legal advice, whether it is advisory or to do with litigation or commercial and property. That is how we are structured.

The Chairperson (Mr O'Toole): I presume that OLC will do the drafting of your Bill, Gerry.

Mr Carroll: No, it is done outside.

Mr Thompson: My understanding is that it is the task of the Assembly Commission's legal advisers to support Members in the development of their private Members' Bills. If, then, a Minister likes the cut of your Bill's jib and it is taken on by a Department, OLC will give it a shine.

Mr Carroll: OK. It is just that there is a lot of expertise there that could be utilised for more than just Departments, but I appreciate that I may be in a minority on that point. I thought that I would ask. Thanks.

The Chairperson (Mr O'Toole): I have one final question. Do we have a challenge here? There are pressures, in that there is legislation from Ministers and from people doing private Members' Bills. Is there a challenge in recruiting people? You have to compete with legal salaries in the private sector, which, I assume, are tough competition. There is drafting, and the work that you do, which is detailed legislative scrutiny, is a particular specialism within the law. You cannot walk straight into DSO from doing conveyancing in a small solicitor's office or being a criminal defence barrister; those are different roles. I presume that it takes some time to train people.

Ms Timoney: In answer to your first point about recruitment, we still have a lot of interest in the roles.

The Chairperson (Mr O'Toole): Do you? OK.

Ms Timoney: Yes, we do. That is not a concern at the moment. We certainly put out the message that it is a privilege to work in the Departmental Solicitor's Office. It is the most interesting legal work in Northern Ireland, and I think that people recognise that.

On the issue of training, that is exactly right. That is slightly different again. I talked about the four advisory divisions. We could be very lucky and get someone who can do the work because they have come from another jurisdiction or from other Departments. People might happen to have that experience. Generally, however, when new employees come in, there is training. That is another aspect of this year's business plan. One of our directors, Denise Kelly, set up a cross-organisational training committee to identify training needs in the organisation and to manage the provision of that training, which includes training on legislation. That is very much the case.

We work in teams with specialisms. We have "one-to-ones", as we call them, each week. There is training, and there is that support on casework. The committee to identify training needs, Denise and one of her assistant directors are providing training on legislation to Departments, because Departments can experience changes in resourcing as well. That was recently rolled out to the Department for the Economy and, most recently, just this month, to DAERA and colleagues in TEO. That will probably be rolled out further.

The Chairperson (Mr O'Toole): OK. I am fairly certain that it is not so much about lack of interest but that you are constrained by resource. It is not because people do not want to join.

Ms Timoney: I was on an interview panel last November. That was our most recent recruitment, and a large number of people applied.

Mr Thompson: On your point, Chair, the people whom we need do not arrive ready to do the work. A fair bit of specific training needs to go into developing the resource, but people are definitely interested in joining, and they really enjoy the work.

The Chairperson (Mr O'Toole): That is most helpful. No members have indicated that they would like to ask further questions. Thank you very much for the time that you have given us this afternoon. That was most useful around the registration Bill, as it will be at some point, hopefully, and some of the other work. Thank you very much for your time, Joanne and Ross. We really appreciate it.