The European energy market is the last large scale market which has not been widely harmonised to date. This is unsurprising due to the vastness of the market and its highly technical nature. The EU Third Energy Package, which is made up of a series of directives and regulations, forms a regulatory framework designed to reinvigorate the integration of the European energy markets for electricity and gas.

Aims and goals

It is hoped that the implementation of the Third Package will go some way to meeting the EU targets for 2020 which aim to secure a 20 per cent reduction in greenhouse gases, a 20 per cent reduction in demand and a 20 per cent energy mix of renewables across Europe.

Additionally, the Third Package aims to safeguard consumer interests and promote market competition by providing consumers with the ability to quickly change suppliers and to prevent discrimination in the use of networks by requiring the separation of transmission system interests from those of supply and generation. It also provides for the functional independence of national regulators, such as the NIAUR and the CER.

The process of large scale integration

The logistical problems associated with such wide scale integration are being tackled through the promotion of regional initiatives. The expectation is that by achieving regional integration in the first instance, the wider process of harmonisation will be accelerated by a coordinated approach to the introduction of network codes for cross border flows of energy.

Locally, regional cooperation is being implemented for electricity through the France-UK-Ireland (FUI) regional initiative and for gas through the North West (NW) regional initiative with the process of integration being overseen by ACER, the new European energy body.

Electricity market interconnection

For electricity, the liberalised market will be provided through increased interconnection, with energy flowing from areas of surplus to deficiency in the most competitive way, resulting in reduced energy costs for consumers and increased security of supply.

Initially, large scale investment in infrastructure will be required with significant additional interconnector capacity needed to ensure the unabated flow of electricity. This is of particular importance given the intention to increase the percentage of renewable generation in the energy mix.

Future network infrastructure must be able to cope with increased levels of intermittent generation with there being a risk of higher levels of curtailment and constraint if necessary upgrades are not made. Associated with this is the need to roll out smart grids to predict and intelligently respond to market demands.

These changes will also be delivered through the introduction of harmonised network codes which will deliver a target market model that will be automatically binding to create unified capacity and congestion management codes.

Issues for the SEM

The island of Ireland has had an all-island electricity market since the introduction of the SEM in November 2007. The SEM market trading arrangements are markedly different from those in the other FUI regions, being based on a gross mandatory pool market with day-ahead gate closure and ex-post pricing. There is currently no physical day-ahead or intra-day trading in the design.

The Third Package target model includes flow based market coupling for day-ahead trading, in which cross-border capacity is made available implicitly by means of energy transactions through power exchanges.

Important features in the SEM market design are incompatible with this day-ahead trading model. For example, there is no firm day-ahead price, the SEM is scheduled and dispatched centrally, it provides for explicit capacity payments and it has longer gate closure times. Also, robust arrangements are required for intra-day trading which is seen as critical for systems with a high proportion of intermittent supply through the use of renewables.

In this regard, transitional market arrangements may be put in place by 2014. Many see a two-phased approach as the fastest way to move to full compliance with the introduction of arrangements for day-ahead and intra-day markets with central dispatch. However, certain specified criteria must be met and demonstrated to ACER before this will be permitted.

Others believe that it may be best to concentrate on putting into place final measures by 2016, when an enduring market design is required under the Third Package obligations.

Common Arrangements for Gas

The completion of the Scotland Northern Ireland Pipeline (SNIP) gave Northern Ireland access to natural gas for the first time. Although a relatively new market, it is likely to undergo significant changes in the short to medium term with the introduction of the Common Arrangements for Gas (CAG) which are intended to provide an all-island market in gas.

Although it is still in the development phase, the regulatory authorities on both sides of the border are endeavouring to ensure that CAG is Third Package compliant. The outcome is expected to be a common network code developed to cover all transmission assets in Northern Ireland and the Republic of Ireland with short-term capacity and interruptible capacity products aligned with those network codes.

With regard to Northern Ireland, the fully postalised transmission system regime currently used is likely to change as a result. This regime results in a single tariff being charged to all users at their exit points irrespective of that exit point or the pipeline used. The Third Package requires that tariffs should reflect the actual costs incurred in using the transmission system, so it would appear that an ‘entry-exit’ point design may be adopted.

Further, as capacity on the SNIP is currently only available on an annual basis, it would appear that short term products will be required to be made available to comply with Third Package requirements. These products would be for monthly or daily entry capacities with the methodology used to calculate tariffs likely to follow the Gas Link code to maintain a level of certainly for Irish shippers and to minimise changes from a code perspective.

Our energy future: moving towards compliance

It would appear that there is a great deal of work to be done and it is no secret that the tasks ahead are challenging. However, we should move forward into this new phase of integration with some confidence.

From an electricity perspective, we have successfully integrated two wholesale markets into one before. Although the SEM is not currently compliant, some level of evolution or even revolution, is likely to be accepted by stakeholders.

In relation to gas, CAG provides us with a great opportunity to put in place a Third Package compliant system from its inception, thus providing an all-island gas market which will bring benefits to all.

Alan Bissett is the lead Partner and David Trethowan is an Associate in Arthur Cox’s Projects and Energy Group

UK and EU competition law prohibit two main types of anti-competitive activity: (i) arrangements between two or more undertakings which have the object or effect of preventing, restricting or distorting competition and which appreciably affect trade in the UK or the EU; and (ii) abuse of a dominant position in a market by one or more undertakings.

Investigation and enforcement of competition law

The Utility Regulator has concurrent powers with the Office of Fair Trading to investigate and take enforcement action in relation to suspected infringements of UK and EU competition law. These powers include the ability to give directions to bring an infringement to an end, accept binding commitments and impose financial penalties up to 10 per cent of worldwide turnover. To date, the Utility Regulator has not exercised its competition powers.

The UK Government has proposed a reform of competition enforcement which will involve the creation of a single Competition and Markets Authority (CMA). Proposals include giving the CMA sole competition law powers in the regulated sectors or at least encouraging a more proactive use of competition powers in these sectors. At European level, the energy sector continues to be on top of the European Commission’s agenda with a number of important cases in recent years.

Application of competition law in the energy sector

In the UK, the highest penalty to date for an abuse of dominance was imposed by Ofgem in October 2004. Ofgem fined National Grid £41.6 million (reduced to £30 million on appeal) for entering into long-term contracts with energy suppliers to supply and maintain gas meters. These contracts restricted the rate at which suppliers were able to replace National Grid’s meters with cheaper and more advanced meters from rival operators.

A more recent case involving long-term supply contracts involved EDF SA, the French electricity supplier

The Commission believed that EDF was abusing its dominant market position for the supply of electricity to large industrial customers through the use of long-term electricity supply contracts. EDF undertook not to conclude any new contracts which exceed five years in duration and to offer large industrial customers non-exclusive contracts.

Another recent case is E.ON, where the Commission was concerned that E.ON had abused its dominant market position for the supply of gas in Germany by reserving to itself almost the entire capacity at key entry points into the gas network. As a result, E.ON undertook to release pipeline capacity to enable other companies to compete on the German gas transmission market.

Does regulatory supervision shield companies from competition law?

In 2010, the European Court of Justice (ECJ) delivered an important judgment with potential consequences for the energy sector5. The ECJ confirmed the decision of the European Commission that Deutsche Telekom had abused its dominant position by charging competitors prices for network access services that were higher than the retail prices which Deutsche Telekom’s end-users were charged. Deutsche Telekom was fined €12.6 million. The ECJ held that, even though Deutsche Telekom’s prices were subject to regulatory supervision, it was left with sufficient freedom to end the abuse. The Commission had therefore been entitled to find an infringement of Article 102.

What does this mean for energy companies active in Northern Ireland?

Deutsche Telekom is an important judgment for all regulated sectors as it makes clear that decisions of national regulators do not shield dominant companies from the application of competition law. In Northern Ireland, it means that energy companies remain responsible for their actions under UK and EU competition law, even if their activities or prices are approved by the Utility Regulator. Moreover, even if a network is independently owned (e.g. NIE), pricing abuses contrary to UK and EU competition law may still occur (e.g. predatory or excessive pricing).

Energy companies should therefore ensure that their activities are fully compatible with applicable competition law.

Dorit McCann, Associate

EU, Competition and Regulation

T: 028 9034 8816

E: dorit.mccann@carson-mcdowell.com

Hot on the heels of the ROC re-banding consultations in Great Britain, the recently published Department of Enterprise, Trade and Investment (DETI) ROC banding consultation has met with a broadly positive response in the local market.
Whilst the document is still only consultative at the time of writing this article, it does provide specific insights into a transitional regime for UK renewables, starting in April 2012 and ending in March 2017. During this period the multiples of ROCs, or bands which producers benefit from, have been tweaked.

For the majority of technologies, DETI proposes to remain consistent with the proposals in Great Britain.

The few instances where Northern Ireland proposes to differ from the rest of the United Kingdom include continued support for landfill gas at 1 ROC/MWh to 2015 and, in the absence of a feed-in-tariff for small-scale projects in Northern Ireland (up to 5 MW), continued enhanced support for small-scale technologies including onshore wind, anaerobic digestion and solar under the NIRO.

The key changes to the ROC system are that onshore wind will drop from 1 to 0.9 ROCs while offshore wind is going to have a phased drop of 0.1 ROCs per annum from April 2015, down to 1.9 ROCs for 2015-16 and 1.8 in 2016-17. Not the 0.5 slash to incentives feared.

Marine energy has received a big boost with wave energy receiving a hike from 2 ROCs to 5 ROCs for projects up to a 30 MW cap, while for facilities above that cap it will be 2 ROCs.

Tidal – which is currently 2 ROCs for all technologies – has a range of options with tidal stream having the same incentives in place as has been proposed for wave energy.

Across the board for different technologies, there is a slight drop in ROCs for waste-related and solar energy (above 5 MW) alongside broadly continued support for biomass. 

Gary Connolly, Chairman of the Northern Ireland Renewables Industry Group (NIRIG), says: “The measures to support wave and tidal energy are particularly welcome and will help build a domestic market big enough to drive innovation and lower cost.
“Onshore wind is already the least expensive form of renewable energy on a mass scale and is currently providing the largest share of renewable electricity. These measures must not put its future deployment in doubt.”

The mood in the market is fairly positive with most saying that they had expected onshore wind to be more heavily impacted than by the loss of just 0.1 ROC. As to offshore wind, the consensus seems to be that the fall in the number of ROCs over the coming years matches what industry believes will be the fall in capex as the sector matures.

As to the marine energy sector, B9 Offshore Developments – which is developing the Thetis tidal scheme at Torr Head in Northern Ireland – Managing Director Michael Harper welcomed the news as a great boost for the local industry.

Harper says: “By proposing to move the ROC banding in Northern Ireland into line with the current level of 5 ROCs for wave in Scotland, DETI has given a positive signal which will incentivise inward investment in what has the potential to be a world-leading, high growth success story for Northern Ireland.”

For more information on the new banding levels proposed for Northern Ireland, please visit our website to access a recent market briefing: www.mcgrigors.com/e-bulletin/energy/eb-2011-10-31.html or contact Richard Murphy (Director, Head of Energy Group in Belfast) on
+44 (0) 28 9089 4844 or by Email at richard.murphy@mcgrigors.com

Peace has a price, as Oliver Napier knew well after yet another gun attack or surveying his burnt out farm. Those sacrifices, though, confirmed to him and his wife, Briege, that they were on the right track.

A middle-class Catholic solicitor, he joined the Ulster Liberal Party and New Ulster Movement before co-founding Alliance in 1970. He was initially its co- leader, alongside Bob Cooper, before becoming the sole leader in 1973. In the same year, he was elected to the new Assembly for East Belfast.

Napier maintained his commitment to moderation, non-violence and power- sharing throughout the darkest days of the Troubles.

The Sunningdale Agreement proved that a solution based on those principles could be achieved. Napier briefly served as Legal Minister in the 1974 Executive, which foundered in the Ulster Workers’ Council strike, led by Ian Paisley. To save the administration, he proposed a compromise over the Council of Ireland but John Hume was opposed.

Hume and Paisley would be credited with much later political breakthroughs, and with hindsight may have chosen differently. Napier, though, kept a shared government on the negotiating table.

His elected career in East Belfast continued in the Constitutional Convention (1975-1977) and in the Northern Ireland Assembly (1982-1986). In 1979, he came within 928 votes of winning its parliamentary seat. He tried again in 1983 and 1986.

Napier also represented the Victoria area on Belfast City Council (1977-1989) and contested the European poll in 1979. His political career moved to North Down, as a Northern Ireland Forum member (1996- 1998) and candidate in the 1995 by- election and 1997 general election.

A knighthood rewarded his work after stepping down from the party leadership and he lived to see three ambitions fulfilled. Firstly, the Good Friday Agreement re-established power-sharing and devolution. Alliance then re-entered government in 2010. Finally, he was thrilled to see Naomi Long win East Belfast and close that circle 31 years on.

His motivation was drawn from an unwavering commitment to politics and a firm Christian faith. The latter gave him a burden for the least in society and to see people reconciled.

A wry and jovial man, he could also be shrewd and ruthless. The Old Firm was “naked sectarian hatred, fantastic,” he joked after his first match, later in life. When the blackened farm went up for sale, he advertised the locals to whom it should not be sold, daring the suspects to sue him. Responding forensically to a Minister’s speech on internment, he finished each point with “what bloody arrogance.”

It is to his credit and Northern Ireland’s benefit that he foresaw an answer to violence and kept that resolve. Tributes from his party colleagues were echoed across the political spectrum.

Sir Oliver is survived by his wife, three sons and five daughters, and was predeceased by a son who died in infancy.

Fines of up to £500,000 can be issued by the Information Commissioner’s Office (ICO) for data protection breaches.

To date, though, the biggest fine the authority has levied is £100,000. Hertfordshire County Council was forced to pay out after it faxed information on child protection to the wrong recipient in two separate cases.

Assistant Information Commissioner Ken MacDonald explains that on the first occasion “rather graphic” information was sent to a private individual and in the second case sensitive legal papers were faxed to a solicitor’s firm, which were mistakenly “passed around the whole office” to determine who was dealing with the case before it emerged that nobody in the firm was responsible.

The Information Commissioner’s Office (ICO) was set up in 1984 as the Data Protection Registrar to uphold information rights, promote openness by public bodies and ensure data privacy for individuals. MacDonald leads the Scotland and Northern Ireland offices.

“When we look at monetary penalties, one of the things we will take into account if we are considering levying one is the resources that are available to the organisations,” he remarks.

The ICO recognises that small companies may not be able to pump the same level of resources into data security as large corporations or the public sector. However, this is “not an excuse” if there is a breach and the full picture would have to be examined before a decision on penalties would be made.

Failure to follow an enforcement notice is a criminal offence so it is a “very powerful sanction”.

Many companies have a different view of what measures should be taken to protect data but MacDonald contends that they must appreciate that it’s not all about technical solutions.

“Appropriate measures will be determined by the characteristics of the data which you hold, the sensitivity of it, whether or not it’s very basic information,” he comments.

Sensitive information

Encryption is becoming “increasingly important” and the ICO is planning to take action in cases where sensitive information is lost from laptops or USB sticks that haven’t been encrypted.

Blocking ports should be a priority for companies and questions should be asked as to whether it is necessary for an individual to be able to download things onto USB sticks and other portable media. “If it’s not, then block the port because otherwise there is a risk,” advises MacDonald.

Every organisation should have an up-to- date asset register so that they know “exactly what sort of IT equipment they have” and where it is. He cites the example of the old Belvoir Park Hospital where computer equipment and patient files were left in derelict buildings: “It appears that there was no clear register of ownership of what had been in that site before the trust merged.”

Holding onto data when it is no longer useful is asking for trouble, warns MacDonald, because “every piece of data that you hold is a piece of data that could go missing”.

Information should be disposed of carefully and securely, which may mean employing a specialist contractor to ensure hard drives and other sensitive information is “destroyed appropriately”.

MacDonald recommends that companies request an audit of data protection by the ICO: “We’ve had a couple of audits on aspects of data handling within Northern Ireland public authorities over the last few months.” He says that the ICO is “broadly happy with what is happening” in the province.

One of the biggest data security breaches occurred in 2007 when two HMRC CDs with the personal details of 25 million people were lost. MacDonald states: “This is the case that suddenly we realised exactly the volume of information that could go missing.”

In his concluding remarks, MacDonald advised: “You will have to give data out at times but make sure that if you are giving it out it is given out in accordance with the law and not on one of these USB sticks.”

While John Larkin has kept a low public profile since his appointment as Attorney- General, on 25 May last year, his role is a significant addition to the devolved system of government. A local individual is now the Executive’s chief legal advisor and guarding the public interest for the first time in nearly 40 years.

Northern Ireland had 11 Attorneys-General between 1921 and 1972, starting with Richard Best and ending with Basil Kelly. Upon direct rule, the post passed to the Attorney-General for England and Wales.

The 2000 Criminal Justice Review recommended a non-political, independent role for a local Attorney- General. However, this means he has less power than some of his counterparts and has resulted in some calls for reform.

Progress

In one of his first decisions, the AG directed that a fresh coroner’s hearing be held into the killing of Francis Bradley by the SAS in 1986. The families of 11 civilians killed by soldiers in Ballymurphy in 1971 have also submitted a call for a new investigation.

When sworn in on 9 June, Larkin described the independent bar as a “strong and protective force in and for the rule of law.”

In November, Larkin visited the European Court of Human Rights in Strasbourg. He has also launched the Living Law programme, designed to give secondary school pupils a “fresh and lively introduction” to law and the justice system.

Larkin has also called for limits on legal fees so that “people of modest means won’t be required to pay the bills of the wealthy”, adding that senior lawyers who had benefitted from “historically very generous” funding should offer pro-bono services.

The Attorney-General is supported by 13 staff and is paid a £197,000 salary, higher than the Prime Minister (£142,000).

His spokesman explained that this was set by the First and deputy First Ministers, against levels of judicial pay.

For comparison, a Lord Justice of Appeal earns £196,707 per year.

Powers

The Attorney General is appointed by the First Minister and deputy First Minister, acting jointly. Barristers and solicitors “of at least ten years’ standing” are eligible; the term of office lasts five years and is renewable.

At present, his main responsibilities are as follows:

• Chief legal adviser to the Executive (and leading on litigation arising from that advice);

• Referring Assembly legislation which appears to be ‘ultra vires’ (i.e. beyond its powers) to the UK Supreme Court;

• Appointing the Director and Deputy Director of the Public Prosecution Service;

• Guardian of the rule of law i.e. representing the public interest and ensuring that all persons and legal entities are accountable to the law.

As the Attorney-General is unelected, he cannot present legislation or vote in the Assembly. Indeed, the holder is barred from standing for election. During Assembly proceedings, the Attorney- General is free to refuse to answer questions or requests for documents which may prejudice criminal proceedings.

The First and deputy First Ministers have agreed that the Attorney-General’s advice will be sought on the “most important and complex legal matters” facing the Executive and ministers.

Unlike the direct rule Attorney-General, John Larkin has no power to superintend the Public Prosecution Service and cannot, for example, intervene to appeal unduly lenient sentences. “The reason for that isn’t entirely clear to me at least,” he said on his appointment.

The PPS has instead become a non- ministerial department. Its Director consults the Attorney-General on its annual report and amendments to the Code for Prosecutors.

The Criminal Justice Review said that, although the Attorney-General would be non-political, it was necessary to go further and ensure that he did not supervise the PPS. “In other words, there should be no power for the Attorney General to direct the prosecutor, whether in individual cases or on policy matters,” it recommended.

Before justice was devolved, unduly lenient cases were referred to the Court of Appeal by the direct rule Attorney General. Cases are now referred by the Director of Public Prosecutions, who could be regarded as a party to the proceedings.

SDLP Justice Spokesman Alban Maginness says this situation is “unsatisfactory” and the previous referral system had worked very well.

His Alliance counterpart Stephen Farry is “open” to reviewing the Attorney- General’s powers but adds a note of caution “as the current arrangements have only been in place for a matter of months.”

Appealing of lenient sentences, accountability on the Assembly floor and the transparency of advice could all be considered. Farry suggested that the role could be reconsidered in conjunction with a review of the Public Prosecution Service, a decade on from the Criminal Justice Review.

Purpose

Within the British Isles, Larkin’s role is most similar to his southern counterpart, Paul Gallagher, who sits outside government but can participate in ministerial meetings where required. The Irish Attorney-General is responsible for a limited number of prosecutions for fisheries and extradition offences, unlike his northern neighbour.

The Attorney-General for England and Wales (Dominic Grieve) and the Scottish Lord Advocate (Elish Angiolini) are both ministers.

The Northern Ireland Attorney-General has met his Irish and England and Wales counterparts twice since 9 June.

Brice Dickson, a former Chief Human Rights Commissioner, sees the Attorney- General’s purpose as being “a completely independent guardian of the public interest” within the legal system.

“This means providing impartial advice to the Executive, overseeing the civil and criminal justice systems to ensure they operate fairly, and taking legal proceedings whenever necessary to uphold the public interest in the rule of law,” he continues.

The Attorney-General must also “run a very lean machine” in his or her own office, which should be “completely transparent in explaining its outlays.” Dickson would like to see the Attorney- General having more powers to review the PPS’ activities. He would also advise him to “take steps to ensure that the legal system does not fall into further disrepute on account of the excessive fees that are paid to some lawyers.”

In Dickson’s view, the Attorneys-General from 1921 to 1972 did preserve their independence despite previous connections with the governing party. “I would hope that the current and future AGs would follow that lead in putting political considerations entirely out of their mind when exercising their functions,” he concluded.

Justice Minister links

Alban Maginness questioned what relationship existed between the Justice Minister and the Attorney-General. In response, a Department of Justice spokeswoman said that meetings between the two men had so far been “arranged as required” but she anticipated that these will take place at least quarterly.

“Beyond these meetings there is a great deal of correspondence and informal contact,” the spokeswoman added. The Justice Minister is also required to consult the Attorney-General before making appointments to the Law Commission and before agreeing its work programmes.

As with all ministers, the Justice Minister can seek the Attorney-General’s advice on legal matters and seeks his views on the competence of legislation before it is introduced to the Assembly.

Maginness also emphasised that the Assembly needs to work out how he relates to the Assembly. The Procedures Committee has started an inquiry into this subject, which is on hold until the Department of Justice completes its consultation into the Public Prosecution Service’s accountability. This is due to start early this year.

Human rights is not a foreign or ultra- liberal concept, according to Basil McCrea. The UUP MLA, who chairs the Policing Board’s Human Rights and Professional Standards Committee, points out that British parliamentarians helped to draw up the European Convention on Human Rights after World War Two. Winston Churchill was among its early supporters.

McCrea states that human rights is a “basic tenet of democracy and civilisation”. The role of the police is to “uphold everybody’s human rights” but “everybody also has human responsibilities.”

The committee’s formal role is to ensure that the PSNI complies with human rights legislation. “Human rights is at the very core now of professional, modern policing,” he adds, “so our job is not just to ensure the compliance but to ensure that is fully embedded in the very culture of the Police Service.”

There is a view that human rights is a “negative” force that “holds back the police from doing a good job”. In its defence, he explains that the police can only “police by consent” and “have to win the hearts and minds of everyone”. The alternative, without rights, would be a police state.

The police have very powerful rights, including the use of force, and can only be given these if there are “corresponding rights on the other side to say: ‘You can’t use these disproportionately.’”

To give a practical example, he looks back to the Ardoyne riots last July. Many people were unhappy that the police “stood on the line and took it” when under attack. However, dissident republicans wanted officers to break ranks and use their batons, for their own publicity.

Following an assessment from the board’s human rights advisor, it unanimously supported the policing operation put in place by the PSNI to deal with this serious disorder. McCrea sums up the board’s key message as: “No, our Police Service is the finest in the world in public order policing. Officers were disciplined, they do things properly and it’s to their credit that they did it.”

Stop and search

Contentious issues on the committee’s agenda include allegations of state collusion and the use of anti-terrorism powers.

Section 44 of the Terrorism Act 2000 allowed officers to search any person or vehicle in a specified area. It was ruled potentially unlawful by the European Court of Human Rights in July 2010.

“Whilst in any one individual circumstance it may be right to do it, collectively it actually builds up a wave of people saying: ‘Well, the police are victimising me or being unfair here.’” Some communities then claim that the police are not welcome in their area.

“We’ve said to the police: ‘You have used these other stop and search powers [section 21 and 23 under the Justice and Security (Northern Ireland) Act 2007] where you have to have just cause,’” he continues. The PSNI now issues quarterly reports on the number of people who are stopped, the areas in which the searches take place and their frequency.

As a sign of progress, the board’s 2010 Human Rights Report contains five recommendations, compared to 20 in 2009. Its format is now shorter, and the report goes “in tandem” with the thematic inquiries which have been a “really successful innovation”. Each thematic considers a particular subject over four to five months and upcoming inquiries will cover policing with and for the lesbian, gay, bisexual and transgender community, and the use of stop and search powers.

McCrea emphasises that a thematic is “a process rather than an outcome”. Interested stakeholders put forward their views and the committee then gathers responses from the PSNI. The aim is to get a common agreement, even where the recommendations are challenging. Members also check up on progress, six months and 12 months after a report is made; the committee therefore has a “very good relationship” with its stakeholders.

Young people

The latest thematic review covers young people and policing, and considers anti- social behaviour, police powers and alternative disposals. However, as it makes clear, young people and anti-social behaviour are sometimes unfairly linked. In Operation Exposure, the police published photographs of suspected rioters after the Ardoyne riot but the board emphasised that pictures of young people should not be used in this way. Publication can stigmatise young people and lead to them being routinely identified.

Groups of young people are sometimes seen as a problem but the committee says that other activities must be provided for them, as an alternative.

“Young people are more likely to be the victims of crime than the perpetrators of crime,” he remarks. “Quite often, the facts fly in the face of public opinion and what we have to do is try and explain: ‘No, this is not correct.’”

The report was launched with a direct internet feed and is linked into new media, so young people can send in their opinions as well.

“It is really important that our society realises that no one is allowed to victimise anybody for whatever reason,” he states, “that you are not allowed to pick on the young or the old or the infirm, or people of a particular religious background, or people of a particular sexuality. And the police are there to go and support everybody.”

On the professional standards side, the Board also plans to look at incivility i.e. where a police officer is rude to a member of the public. It can take up to 13 other contacts with the police to make up for one poor engagement with a police officer.

McCrea admits that some people have a “difficult relationship with the police for historic reasons” but thinks that the complaints process could be improved. The current culture is to send all complaints straight to the Police Ombudsman’s office. Instead, the committee is keen to find ways of resolving problems locally, perhaps through an apology or clearing up a misunderstanding.

Supervisors and commanders need to make sure that officers understand that policing is a “service to the community” and therefore must build relationships.

Overall, McCrea sums up the committee’s relationship with the police as “positively challenging” and says the board is seen as a world leader in how it handles these issues.

There are disagreements but he adds: “I think we have won their respect, that when we make statements they are well- informed and for the better interests of everybody, and that we do take some time to ensure that our points are properly understood.

“We will not, as a committee, shy away from putting out challenging statements but we will always give the police the opportunity to explain the background or to come up with alternatives or to address the various issues.”

The ultimate outcome sought by the committee is “a society where everybody feels that the police are there to protect them, regardless of background, and that if you go to them you get things sorted out. And if you do that, you get a lot more intelligence and information coming forward.”

Committee members

Chair: Basil McCrea MLA Vice-Chair: Mary McKee Martina Anderson MLA Jonathan Bell MLA Rosaleen Moore

Gearóid Ó hEara Alastair Ross MLA Suneil Sharma

Prison policy was, for many years, inseparable from the Troubles. The hunger strikes and the early releases after the Good Friday Agreement turned the media’s attention on the Maze. Thirty prison officers and other staff have been killed due to their work, with many others injured or threatened.

Now, in changed times, the Prison Service is under pressure to reform, after mounting criticism of how it works. Northern Ireland currently has three prisons:

• Maghaberry (high security);

• Magilligan (medium and low security);

• Hydebank Wood young offenders centre (also includes women’s unit).

“A review of the conditions of detention, management and oversight of all prisons” was promised in the Hillsborough Agreement. It was formally announced on 21 June 2010 and started work on 21 July. David Ford hoped that the review’s work would provide a “route map” for the Prison Service’s future direction.

The review was split into two stages. The first report, due last autumn, will focus on the widely criticised regime at Maghaberry and take previous reports into account. It will also look at development plans and the Prison Service’s programme for workforce reform.

A second report will take a broader view of other prisons and the service as a whole. It would therefore consider Magilligan’s replacement, a possible women’s prison and the future development of the service, including its future composition, and its culture and ethos.

The first report will now be published this month, with second one due over the summer.

Previous reports into the Prison Service have been strongly critical, with Criminal Justice Inspection describing it as “struggling to make the change from a traditional ‘turnkey’ prison service” to one which focuses on resettlement and rehabilitation.

These have highlighted the need for reform but also put a large administrative burden on the service. Nearly 1,200 recommendations have been put forward, of which 600 were outstanding in July 2009. The service also has 28 different action plans.

CJI’s December 2010 report examined why it has been so hard to deliver “real and sustained improvement on the ground.”

Inspectors said that the security-focused culture developed during the Troubles had been “difficult to shake off” but also acknowledged the continuing threat, who had named governors and staff as targets.

Status

In summary, Northern Ireland’s prison system is small and expensive, with the Troubles forming the backdrop to how it works. The number of prisoners reached a peak of 3,000 in 1979. Paramilitaries now account for 4 per cent of prisoners.

Northern Ireland would otherwise have had a relatively small number of inmates. It had just under 700 prisoners in the late 1960s. The province sent 88 people to prison for every 100,000 residents in 2008, which compares to 76 in the Republic, 152 in Scotland, and 153 in England and Wales.

Imprisoning people for unpaid fines has also filled cells. Of the 3,161 people who entered prison in 2009-2010, 1,778 were fine defaulters who were jailed briefly. This normally only accounted for 23 prisoners at any one time.

Despite having 1,883 uniformed officers, staffing levels in prisons were often “insufficient”. Officers work alternate weekends, so only half the staff are available at that time.

Workforce

Inspectors found a “disconnect” between Prison Service headquarters and individual prisons, and “destructive” industrial relations, which were reportedly worse at Maghaberry than elsewhere.

The Prison Officers Association (POA) had an “all-pervasive influence” throughout the system and no one could recall a dispute which it had lost. This so- called “veto on change” was partly due to local agreements it had negotiated with governors over the years. In response,

the POA said that management was weak and it was representing its members.

No main grade prison officers have been recruited since 1994 and few are leaving the service. The Prison Service says that there has been no need to recruit new officers, due to the Good Friday Agreement releases and the closure of two prisons: Crumlin Road and the Maze. Other officers have been recruited since 1994 to perform specific roles e.g. night custody. The basic prison officer salary is £37,364 in Northern Ireland and £28,890 in England and Wales. The staff-prisoner ratio (1.14) is high compared to elsewhere while the cost per prisoner place is the highest in the UK (£94,805).

The “close nature” of the service made it hard to manage. Junior and senior officers had lived and socialised in “safe” areas during the Troubles, and shared the same cars for security reasons.

At Maghaberry, officers had 129 rest days per year, compared to the national norm of 96. Prison Service sick absence stood at 12.7 days per head, compared to 8.2 in the PSNI, and cost £4.6 million per annum. If staff shortages occurred, officers would stop working on resettlement or education.

Security and control of prisoners was seen as “paramount” so officers kept their distance from prisoners. Prison officers, though, are expected to be a good example to inmates by modelling good behaviour and building up trust.

Officers found it difficult to work in the “two worlds” of security and care for prisoners. Some dismissed probation officers and psychologists as “fluffies” and “do-gooders” with too much emphasis being put on rehabilitation.

Reaction

Prison Officers Association spokesman Finlay Spratt said the CJI report was “sensationalised” and put the blame on managers and “centralisation”. Changes had to be made but not by “quangos” or “armchair generals”.

The SDLP wants to see a Patten-style reform. Alban Maginness has called on David Ford to “face down any vested interests”. Sinn Féin demands “root-and- branch reform”. Raymond McCartney condemned the POA’s “conflict culture” and said the number of highly-paid prison officers was unacceptable.

This is strongly rejected by the DUP. Lord Morrow said it is “not credible to draw an exact comparison between prisons on the mainland and in Northern Ireland.” He wants any reform to be “tailored” to the province’s own circumstances.

While the UUP believes that prison reform is “much needed”, David McNarry said that “the anxieties are whether the requirements, which are massive, are able to be costed into the departmental four- year budget plan.” He adds: “If not, reform will prove incredibly difficult.”

With reform having been promised, delivering it will be one of the highest priorities this year for David Ford and the Prison Service’s new Director-General, Colin McConnell. Any change must come at the same time as the planned budget for running costs drops from £149.9 million to £114 million over the next four years.

Key stats (2009 – 2010)

Review members

Dame Anne Owers
(former HM Chief Inspector of Prisons, England and Wales)

Paul Leighton
(former PSNI Deputy Chief Constable)

Clodach McGrory
(barrister and Parole Commissioner)

Fergus McNeill
(senior lecturer, Glasgow School of Social Work)

Phil Wheatley
(Former HM Prison Service Director-General, governor and prison officer)

The age that children are held legally accountable for crime and the way they are treated within the justice system are being examined as part of a major review.

Last February’s Hillsborough Agreement set out plans to review “how children and young people are processed at all stages of the criminal justice system, including detention, to ensure compliance with international obligations and best practice”.

In Northern Ireland, England and Wales, the age of criminal responsibility is currently set at 10. In Scotland, it was raised from eight to 12 in 2009.

Announcing the review in November, David Ford said that “to reshape the justice system, it is important to take a critical look at where we are and what we need to do to further refine and improve our approaches to addressing youth offending.”

Professor Phil Scraton, Chair of Criminology at Queen’s University, told agendaNi that after looking at the terms laid out in the Hillsborough Agreement he “isn’t sure that the way the review has been established and set up will meet those demands and expectations”.

One of his main criticisms is the extent of the review’s impartiality. He highlighted that when the review team was initially set up it had three people, one of whom was the director of the Youth Justice Agency. While the member has now withdrawn, Scraton claims that “the very intention of putting a member of the Youth Justice Agency on the board, and in terms of who is actually servicing the review, brings into question the independence of the review team”. He is also critical that there was no consultation process before the review began.

The current age of criminal responsibility in the province is “very low”, according to the academic. He believes that lifting the age of criminal responsibility is a starting point towards decriminalising young people’s behaviour. Scraton recommended that the age should be raised to 14 or 15 but said that “there is absolutely no justification for having it below 12”.

When children commit acts that could be defined as crimes, Scraton believes it is necessary to understand the reasons behind the behaviour.

“We are in a climate of intolerance against young people and children. The legacy of conflict we have in Northern Ireland creates a dynamic whereby we tend to be more severe and punitive when it comes to children and young people.”

He claimed that giving a child a criminal record is not the answer as they may not have full capacity; instead a welfare disposition should be adopted. This would mean decriminialising the behaviour by understanding the reasons for the child’s actions, bringing the individual to terms with what they have done and intervening to ensure that the actions are not repeated.

An inter-departmental approach is vital, said Scraton, as youth justice cannot be detached from other aspects of children’s lives. Education, he remarked, is an essential part of early intervention. Healthcare is also an important factor.

“We have one of the weakest mental health service provisions for children and young people in Europe. It is quite incredible that in a society that should spend a lot of time, effort and money on supporting children and young people who have been affected by conflict, we have a situation where that is weak.” Scraton believes this is one of the main reasons that lead to children and young people ending up in trouble.

A spokesman for the Department of Justice said David Ford has made it clear that the review is “comprehensive and fully independent and will operate under broad and flexible terms of reference”.

He added: “In establishing the review he has listened to concerns in relation to perceived independence and timescale and has responded positively on both counts. Executive ministers have nominated representatives for their department to inform the review.”

Introduced as an alternative to paramilitary punishments, restorative justice schemes are often the first port-of-call for working class communities that still remain wary of the PSNI. Meadhbh Monahan reports.

“There is an appetite to bring paramilitarism back,” warns Debbie Watters. She is the project manager for the Greater Shankill branch of Northern Ireland Alternatives, one of five community-based restorative justice schemes operating in loyalist areas in Belfast and Bangor. Watters tells agendaNi: “The view is that when the boys were sorting it out, a lid was kept on [crime] and young people had fear.”

Many working-class communities still mistrust the PSNI because it has, according to her, failed to reduce levels of crime. “Young people have no fear [of police or paramilitaries] anymore. There’s a gang culture called FAP (f*** all paramilitaries) growing in Belfast that says: ‘we’ll show you we can do whatever we want and we don’t fear you.’”

This “can’t be allowed to happen”, Watters contends. She adds that the role of community-based restorative justice schemes is becoming more important in keeping communities safe.

Her counterpart on the Falls is Jim McCarthy, the Belfast co-ordinator of Community Restorative Justice Ireland (CRJI). He adds: “There is still a mistrust of the police. Some cops would be just as reluctant; sure you can’t blame them.”

CRJI operates in 11 republican areas of Belfast and Derry. McCarthy has found that republican communities still want “advice and support” in dealing with the criminal justice system. His experience has taught him that “no matter how many liaison officers [the PSNI] have, [locals] want to speak to someone in the community first.”

He reveals: “It’s nearly a weight lifted off their shoulders when you say: ‘I think you should go to the police with that.’”

There are a total of 16 community-based restorative justice schemes operating in Northern Ireland. They receive fundingfrom the Department for Social Development’s neighbourhood renewal scheme (£1,179,000 since 2008), the Department of Justice (£300,000 since 2007 matched by Atlantic Philanthropies) and the Housing Executive. Northern Ireland Alternatives’ five schemes also receive funding from the International Fund for Ireland.

As former prisoners are involved, these schemes have been controversial. Indeed, McCarthy claims that the current Social Development Minister Alex Attwood “is one of our strongest opponents”. The Minister responded that when he was invited by McCarthy to join CRJI, he raised “critical issues” but did not receive a reply.

“I have properly argued that strict rules and oversight is required of community restorative justice. That should continue,” Attwood told agendaNi.

“The risks of wrong and abuse must not happen again. Restorative justice as a concept is very important going forward, but its community practice must be closely monitored.”

He concluded: “I am not an ‘opponent’ but a considered advocate of restorative justice done properly.”

While Alternatives had the police and statutory agencies on its steering group, CRJI only began to work directly with the police in 2008, after Sinn Fé␣in accepted civic policing in 2007. Both schemes had to sign a strict protocol in 2007, stating that they would report all criminal offences via the police to the PPS, which will then refer low level offences back to schemes.

Alternatives

Watters explains that when life sentence prisoners came out of prison under the terms of the Good Friday Agreement, they started asking: “If we are no longer fighting our enemy and using violence, why are we using summary justice processes [paramilitary attacks] within our own community?”

When talked to in their “cool, calm, collected space,” paramilitaries reported that they didn’t want to carry out attacks but “felt pressurised by the community”, Watters says. At the beginning, Alternatives’ vision was to “heal relations at a local level between victims and offenders but [also] at a vertical level between community, police and the statutory agencies.”

The first referrals to Alternatives were from paramilitaries and dealt with young people involved in anti-social behaviour. “It had to be that way at the beginning because we were there as an alternative,” Watters states.

In one of Alternatives’ programmes, a young person signs a personal contract which commits them to modules such as restorative practices, victim awareness and cognitive skills. This can include a face-to-face meeting with the victim if both parties agree.

As the years went on, the number of referrals from the community and statutory agencies increased as communities “cut paramilitaries out of the equation”, Watters reports. “We basically said to paramilitaries that ‘Once you send a person to us; that’s it. We can’t report back to you, we can’t let you know how they are doing and we definitely won’t let you know if they don’t engage’.”

Now, Alternatives is seen as “a community resource”. People approach them with “absolutely any issue”. Watters claims: “The perception that we were an arm of a paramilitary organisation doesn’t exist anymore.”

CRJI

In the early 1990s, McCarthy and other Belfast republicans approached the republican paramilitaries asking them to “make a space” for the community workers to solve disputes.

“Not only did the people in our area not ring the police, they had no dealings with the state what so ever. They were always very wary of the Government,” McCarthy reflects.

CRJI initially operated informally, getting victims and offenders of all ages together to work out their differences. “It was probably restorative justice but we didn’t have a name for it,” he recalls. Statutory agencies also worked with that scheme “under the radar”.

Following research by academics from Queen’s University into punishment beatings and the operation of the informal criminal justice system in greater Belfast, restorative justice training was provided to Alternatives and CRJI. The latter opened its first office in 1998.

McCarthy recalls: “The way we had envisaged it was dealing with low-level anti-social behaviour and crime but as soon as the door opened we were swamped with everything [from murder to car parking disputes].”

In 2004 CRJI was coming under increased pressure from the Government to sign a protocol. Despite CRJI members believing that the police needed to be involved, he claims that “the political climate didn’t exist in the community” therefore the group refused to formalise its relationship with the state.

“We thought [working with the police] would be our death call but at the same time we knew well before Sinn Fé␣in held their special ard fheis on policing that they would accept it so we were going into community halls, getting people ready and creating the circumstances for police involvement,” he explains.

A Criminal Justice Inspectorate report into CRJI’s latest Newry and South Armagh office in October 2009 says that “the relationship between police and the scheme is one that is developing and which holds promise for the future.”

It adds that the South Armagh area “still presents major security considerations for local police [with] paramilitary and organised criminal influences in the area inhibiting the development of normal relationships.”

Protocol

The schemes “reluctantly” signed the protocol in 2007. Although Alternatives and CRJI have a good working relationship now, tensions arose when Alternatives had to sign the protocol despite their collaboration with the police from the beginning.

“If CRJI had never been around, there wouldn’t have been a protocol,” Watters states. “It was a game we had to play.” She concedes that “an awful lot has changed.” But initially, “the system ran very scared from us.”

Both Watters and McCarthy see the protocol as “too restrictive”, mainly because the schems are required to establish an admission of guilt.

In response to an FOI request, the PSNI told agendaNi that since CRJI became accredited in 2008 it has referred one protocol case to the PSNI and since Alternatives became accredited in 2007 it has referred 10 protocol cases to the PSNI; four in 2009 and six in 2010. The majority of the groups’ work is on informal cases, therefore PPS referrals rarely occur.

McCarthy gives an example of a physical fight that broke out between two women neighbours over their children. Both women came to CRJI separately and when they were told a crime had been carried out and would have to be reported to the police, they were surprised and wanted to sit down together with CRJI as mediators.

“We done the paper work and this dragged on for six or seven weeks and had nearly sorted itself out by the time [the PPS] got back to us,” McCarthy states.

The protocol made cases “far more difficult” because the schemes have to establish an admission of guilt. “That’s investigating, which we don’t do,” he claims.

Watters agrees. “The problem is, if the police had the evidence to process that crime, they wouldn’t need the protocol. It comes into operation when the police have no knowledge of the crime. We are handing it over with an admission of guilt because there is no evidential foundation to process it.”

McCarthy recalls a riot which resulted in houses being destroyed and people fighting in the streets. When the police riot squad arrived McCarthy was called by both families involved. A police contact told him which six people they wanted and the charges against them. “I visited both families over the course of a few hours. My advice was to go to their solicitor. The cops pulled back to the fringes and they presented themselves at the station the next day. For me that’s proper protocol. You are just trying to keep the peace, keep it settled and work with the cops,” McCarthy says. He adds that he was thanked by the police because it saved them money.

Both community workers, who have acted as the go-between between the community and the police on many occasions, believe that the protocol doesn’t work for local communities and have requested that it be reviewed.

“I think they will be open to reviewing it,” Watters contends.

A Department of Justice spokesman confirmed that a review is scheduled to take place in 2011.

Funding is a key priority for Watters and McCarthy. “We need core funding,” she states, adding that if DSD’s Neighbourhood Renewal scheme is cut, Alternatives and CRJI “will be in major diffs.”

A forum in practice
Watters and McCarthy advocate a facility, like the Community Justice Centre in Liverpool, where different statutory agencies operate under one roof with a focus on restorative practices. Presided over by Judge David Fletcher, all the agencies are co- located in the centre, housed in a former primary school in a rough estate. Other services include drug and alcohol workers, debt counselling, housing advice and mediation.

“As opposed to just criminal justice, it sees justice as community safety, good mental health and having just and safe communities. It’s the essence of restorative justice,” Watters states. However, a similar facility for Northern Ireland is 10 to 15 years down the line, “if it happens at all,” she believes. McCarthy admires the way in which “the whole emphasis is on problem-solving rather than punishment.” He believes that people need to understand how the justice system works. “It’s a big piece of work but I think it’s important,” he concludes.