Official Report: Minutes of Evidence

The Deputy Chairperson (Miss Hargey): Judith, you are welcome. I invite you to give an overview of the paper. I know that there is a PowerPoint presentation, so I hope that our members online can see it. If there are any issues or queries or if you want to stop, just indicate and we will do that. Judith, over to you. Thank you.

Ms Judith Bailie (Northern Ireland Assembly Research and Information Service): Thank you, Chair, for the invite to address the Committee on the Justice Bill this afternoon. I attended a Committee session in September, just after the Bill was introduced in the Assembly, during which I gave a general overview of all four Parts of the legislation as drafted. Today, you will be pleased to hear that I will focus only on Part 4, which covers the administration of justice, in more detail. That will involve looking at nine of the 34 clauses currently in the Bill. I aim to go through each clause to highlight the current legislative and policy situation in each area, the impact of the proposed changes and some areas for potential further consideration by the Committee. Hopefully, that will give you a useful basis on which to build in the coming weeks as the Committee issues its call for evidence and begins to hear from more stakeholders on this Part of the Bill.

The first two clauses of Part 4 relate to policing. Clause 22 amends existing legislation to provide the Northern Ireland Policing Board with the express power to delegate matters to board members and staff. That could relate to the delegation of decision-making on matters such as pensions forfeiture, ill-health retirement and injury on duty. There is a significant volume of work involved in those areas, and the Department considers this provision necessary in practical terms to help ensure more timely decision-making. The clause also addresses the judgement in the case of McKee & Others v the Charity Commission for Northern Ireland. In the case, the Court of Appeal upheld a legal challenge to the delegation of decision-making powers by the commission to members of staff.

Clause 23 relates to policing oversight and accountability. The current legislation requires the Comptroller and Auditor General to audit the Policing Board's performance plan and arrangements to ensure continuous improvement in policing. Clause 23 is intended to repeal that requirement. The Comptroller and Auditor General previously recommended the removal of the statutory requirement to audit the Policing Board's performance plan. The plan is a report that is developed annually in partnership with the PSNI and contains a range of performance measures and indicators that are structured around overarching outcomes. However, it is not focused solely on financial accountability, which is the main remit of the Northern Ireland Audit Office, so the removal seems to be aimed at reducing duplication. The Committee will be aware that His Majesty's Inspectorate of Constabulary and Fire and Rescue Services inspections already assess the effectiveness and efficiency of policing, and Criminal Justice Inspection Northern Ireland also has a role in that space. Essentially, the legislative change in the Bill will mean that the Northern Ireland Audit Office will no longer produce an annual report on continuous improvement arrangements in policing. However, provisions still remain in the legislation to allow for an examination of the board's compliance, if that is ever required.

The next three clauses relate to criminal proceedings. Clause 24 corrects a drafting error in the law that relates to conspiracy to commit offences outside Northern Ireland. The law currently states that criminal proceedings can only be instituted:

Clause 24 will transfer consent to the Advocate General for Northern Ireland. That will bring Northern Ireland into line with the position in England and Wales where the consent of the Attorney General, who is also the Advocate General for Northern Ireland and the chief legal adviser to the UK Government on Northern Ireland law, is required.

What do we mean by:

A conspiracy offence, by its very nature, is essentially an agreement to commit a substantive offence at a later time. The question of taking a broad approach to jurisdiction in conspiracy offences is an interesting one, as a range of technologies can be used to formulate an agreement to commit an offence. Given the international context in which that type of offence may be formulated, the transfer of consent under clause 24 may be intended to act as a safeguard.

Clause 25 addresses a legal gap in existing legislation to prevent a charge of murder or manslaughter from being no billed when linked to an offence of causing or allowing the death of a child or vulnerable adult. What does the term "no bill" mean? A Crown Court judge can order a no bill in respect of any indictable offence that a person has been charged with if they consider that there is not sufficient evidence to justify putting the person on trial for it. That means that the charge for the indictable offence would then be dropped and the person would not have to face trial for it. The proposed changes in the Justice Bill relate to existing legislation under which there is an offence of causing or allowing a child or vulnerable adult to die, which was subsequently extended to cover causing or allowing a child or vulnerable adult to suffer serious physical harm. The existing legislation is intended to address scenarios in which there are maybe two caregivers in a household, but there is no evidence to suggest that they acted jointly — that one caregiver caused the harm, and the other did not take reasonable steps to prevent it, but there is no evidence to implicate one over the other. Under the offence, the prosecution does not have to prove which defendant caused the death or harm and which allowed it. As you can see from the slide, if a Magistrates' Court considers that there is sufficient evidence to charge a defendant with one of those offences, it will also be deemed that there is sufficient evidence to put them on trial for the other, more serious offences that are highlighted.

On the no bill element, a Crown Court judge can only enter a no bill in relation to attempted murder, grievous bodily harm or non-fatal strangulation if they also do so in relation to the offence of causing or allowing serious physical harm. Given the evidential difficulties in this type of case, that removes the risk of the more serious charges of attempted murder, grievous bodily harm or non-fatal strangulation being dismissed prematurely before all the evidence is heard. The gap arises because, under the existing legislation, there is no equivalent provision to restrict the entry of a no bill in relation to causing or allowing a child or vulnerable adult to die. That is what clause 25 is intended to remedy. In practical terms, this change seems to be positive. In England and Wales, a judge cannot enter a no bill on a charge of murder or manslaughter unless the charge of causing or allowing death is also dismissed. It is unlikely that there will be many cases where that anomaly in the law is relevant, but at present it appears that, locally, judicial discretion is required to refuse a no bill application in such circumstances.

As for sentencing, the maximum penalty for the offence of causing or allowing a person's death on indictment is 14 years' imprisonment or a fine or both. In theory, a defendant can receive a lower sentence if an entry of no bill is accepted against the murder/manslaughter charge. It is quite technical, but, in summary, the change will align the procedures for offences of causing or allowing a child or vulnerable adult to die with the arrangements currently in place for causing or allowing serious physical harm. A defendant will therefore face trial both for murder or manslaughter and for causing or allowing a death. It will allow the evidence to be heard in the round before a decision is taken on whether there is a case to answer.

Clause 26 relates to the examination of a defendant in criminal proceedings through an intermediary. The proposed changes aim to address a specific gap identified by the victim and witness steering group in the provision of registered intermediaries for defendants with communication difficulties during appeal proceedings. The legislation currently allows for the examination of defendants through a registered intermediary in Magistrates' Courts and Crown Courts. The amendment will provide in legislation for registered intermediaries where there is an appeal from a Magistrates' Court or Crown Court to the County Court or the Court of Appeal. Registered intermediaries already provide assistance in appeal courts at the discretion of the judiciary. However, the Department previously told the Research and Information Service in correspondence that it expects an additional two to three cases per annum as a result of the provision, at a cost of around £300 to £400 per case, which, it forecasts, will be met within existing budgets. The changes relate only to the criminal courts, but there was a consultation in 2022 on the feasibility of extending registered intermediaries to civil and family proceedings. That is not covered in the Justice Bill, but it may be worth clarifying its status, as it was recommended in Sir John Gillen's review of civil and family justice.

Clause 27 relates to the Statutory Charges Register. What is a statutory charge? As you know, the Legal Services Agency provides legal aid for civil legal services in a range of circumstances. The sums expended by the agency in paying legal practitioners will create a first charge over any property that is recovered or preserved by that individual as part of legal proceedings. That is known as a statutory charge. The Legal Services Agency will therefore expect to be repaid out of property preserved or recovered by the recipient of legal aid. That may include, for example, pensions or a house that is part of a divorce case. The agency can decide not to insist on a property being sold and instead opt to defer a repayment until it is sold using a charge to secure the interest of the legal aid fund. It registers the statutory charge on the property to protect its interest, and that will also alert potential purchasers to the existence of the charge. The Legal Services Agency cannot currently register that charge on the Statutory Charges Register, as the legislation that gives the agency the power to impose and enforce its statutory charge is not included in it. Clause 27 will address that issue and allow for the registration of statutory charges in the Statutory Charges Register. That was consulted on by the Department in 2022, but it may be worth the Committee probing further with relevant stakeholders how the change will practically aid transparency and whether there would be any unintended consequences for conveyancing solicitors.

Clause 28 relates to legal aid. It amends existing legislation to impose restrictions on the taxation of legal aid costs. What does the term "taxation" mean? It is a procedure through which a solicitor or barrister submits their bill in respect of a case to the taxing master, an independent judicial office holder who assesses and determines the legal costs to be paid. Once the process is complete, the taxing master issues a certificate for the costs allowed that is presented to the Legal Services Agency for payment. The power to enable costs to be taxed can be derived from governing statute or from the order of the court, depending on the type of proceeding. It is envisaged that clause 28 will support the future introduction of alternative methods of determining the remuneration payable in relevant legal aid cases — that is, standard fees. This proposed change was recommended by the Public Accounts Committee and featured in the access to justice review. The Department most recently conducted a consultation on it in 2022.

There are a few areas for the Committee to consider on the issue that may be worth exploring with stakeholders. Will restricting the role of the taxing master give effect to greater predictability around legal aid payments? Is there potential for any future impact on access to justice? The Department has indicated that it plans a phased approach to the reform of fees, with High Court bail applications, criminal Court of Appeal proceedings and judicial review proceedings, all of which are currently assessed by the taxing master, initially being identified in this mandate. It may be worth asking what the longer-term plan is in the area. What about family and children order proceedings, which account for a significant proportion of taxed legal aid expenditure? What remit will the taxing master have once these changes are implemented? How will the change link into the Minister's wider enabling access to justice reform programme delivery plan, which was announced in December 2024 and is due to be published for consultation?

We then have clause 29, which covers the automatic review of certain criminal records certificates. It updates existing legislation to comply with the 2019 Supreme Court judgement on the disclosure of non-court disposals for under-18s. It clarifies in legislation that all:

can be automatically considered by the independent reviewer prior to the issue of a criminal record certificate. AccessNI has been referring all youth court non-disposals to the independent reviewer since March 2020. Under that process, the independent reviewer reviewed 165 disclosures with youth non-court disposals in 2023-24, removing the disposals in 159 of the cases. The Department has indicated that it does not envisage any additional cost as a result of this provision. This specific clause was not subject to consultation, given that it stems from a Supreme Court judgement, but some stakeholders working in the youth sector have previously called for the full implementation of recommendation 21 of the youth justice review, which was around young offenders being able to apply for a clean slate at the age of 18. However, the Department takes the view that a blanket policy of not disclosing any other disposals occurring when a person was under 18 in any circumstances could create safeguarding risks for vulnerable groups.

Finally, we have clause 30, which covers court security. It will amend existing legislation to provide the Department of Justice with regulation-making powers to add to the list of relevant buildings. It will extend the use of court security officers to areas of business that are not covered by existing legislation. They have been developed on the basis of security recommendations and in consultation with the Northern Ireland Courts and Tribunals Service. In correspondence with the Research and Information Service, the Department indicated that it does not foresee any additional costs arising from the provisions, as they aim to better support the security arrangements that are already in place.

I have covered quite a lot of technical information in the presentation. I am happy to try to answer any questions. If you would like me to research anything else about this part of the Bill, let me know.

The Deputy Chairperson (Miss Hargey): Thanks very much, Judith. It is useful to get that recap, particularly in advance of the hearings that we will have over the coming weeks covering some of these areas. I will throw the meeting open to members for questions.

Ms Egan: Thank you, Judith. That was genuinely really helpful and clarified a lot of things for me. Are we able to get access to those slides?

Ms Bailie: Absolutely, yes.

Ms Egan: I know that they are based on the pack that you have given us.

The Deputy Chairperson (Miss Hargey): We can get them emailed.

Ms Egan: I am just worried that I may have missed something. If we could get them, that would be really helpful for our knowledge.

Ms Bailie: Absolutely.

The Deputy Chairperson (Miss Hargey): Does anybody else have a question?

On clause 25, I know that you said the change can be positive, but I note that there was no consultation done. Is there a way to seek the Department's view on what engagement, if any, there was with the profession on the proposed change? We will pick that up when we meet the Bar Council and the Law Society.

On clause 27, there was a consultation back in, I think, 2022, and the Law Society raised concerns about unintended consequences. Can we get clarity on the back of the consultation responses? Has the Department looked at those, and what has it determined? Obviously, it is moving ahead, but how will it mitigate the concerns that were raised?

Ms Ferguson: I have a further question. I know that, when the Department was in previously, it was early days in respect of clause 28 around restricting the role of the taxing master and the proposed changes. I know that it was doing research. It would be useful if we could get the Department in to update us on what work has been done to ensure that is not going to adversely impact people's access to justice and what new system, if any, has been developed to ensure that remuneration reflects and recognises the time and skill provided by the legal profession and how it will be monitored and reviewed. It would be really useful to get an update on that.

The Deputy Chairperson (Miss Hargey): Any other members? Anybody online? No?

Judith, thanks very much. Obviously, your paper has prompted more queries and questions to the Department, which is good. We appreciate your time and the paper. We look forward to getting the slides. Thank you.

Ms Bailie: Perfect. Thanks for having me.