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Amendment, by leave, withdrawn.

Mr. Laurence Robertson (Tewkesbury) (Con): I beg to move amendment No. 18, in page 14, line 4, at end insert—

'(   ) The Act may provide for the department to be in the charge of the First and Deputy First Minister acting jointly.'.

The Chairman of Ways and Means (Sir Alan Haselhurst): With this it will be convenient to discuss amendment No. 19, in page 14, line 5, at end insert—

'(aa) for the department to be in the charge of the First and Deputy First Minister supported by junior Ministers;'.

Mr. Robertson: These too are probing amendments. The Bill as it stands allows for the Assembly to provide that the new police and justice department be in the charge of two Northern Ireland Ministers acting jointly or a Northern Ireland Minister supported by junior Ministers, and for them to rotate. My amendments would give the Assembly the power to provide for the Department to be in the charge of the First Minister and Deputy First Minister acting jointly and/or the First Minister and Deputy First Minister supported by junior Ministers.

The reasoning behind the amendments is twofold. First, the Department will be of such importance that putting it in the charge of the most senior Ministers in Northern Ireland should rightly be an option. Secondly, that kind of arrangement could provide cross-community control of policing and justice with all the necessary checks and balances in place. I feel that that would have the potential to give at least some confidence to both communities.

I will not press the amendments to a vote, and I will not detain the Committee long on them. The option was in the discussion paper circulated a while ago, and I was a little surprised that it did not find its way into the Bill. Since the amendments were tabled, the Minister has been kind enough to assure me that it is covered in the 1998 Act. I would like his assurance that the situation that I describe is a possibility should policing and justice be devolved.

Mark Durkan: I note that the amendments are probing. Obviously, were they included in the Bill, they would make the devolved policing and justice powers part of the portfolio of the Office of the First Minister and Deputy First Minister. I know that that was one of
 
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the options on the menu that might be considered in party discussions, but I can advise Members, as someone who has served in the Office of the First Minister and Deputy First Minister, that it would be a most unwelcome and unhelpful arrival in that Department. It would not assist the competent performance of the Department at large, and it would add unduly to the burden of the First Minister and Deputy First Minister and handicap the good conduct of those devolved responsibilities.

I do not fret about the absence of that option. The significance of the Bill setting out some options is that it raises questions: if such matters are to be the subject of agreement by the parties, does not it make sense to ask the parties to have those discussions, reach agreement and then legislate on known outcomes? We have seen some of the folly and futility of legislating for all sorts of potential options, which then turn out not to be needed and are withdrawn subsequently or overtaken by other legislation.

I note that the d'Hondt option is available for appointing a First Minister and Deputy First Minister, or the Assembly can decide not to appoint by the d'Hondt system. Of course, under the Bill, that decision would be entirely under the control of Sinn Fein and the Democratic Unionist party—no doubt a marriage made in heaven. They, through their control of the Office of the First Minister and Deputy First Minister, and of the voting mechanism proposed in the Bill, would determine that entirely. An option of joint Ministers and rotating junior Ministers is given, but no option is given for the Assembly to say that it will be outside the d'Hondt system and that the Assembly will elect, through cross-community support, a single Minister. In discussions, the parties might agree that they want to go for that option. The House could therefore find itself having to legislate for another option in future—unless, of course, there has been prior agreement on some of the options under consideration.

Many of us have questions about that. Martin McGuinness tells us that the whole question of how and what things were to be transferred was done and dusted in the negotiations leading up to the so-called comprehensive agreement of December 2004. With regard to the comments of the hon. Member for Belfast, East (Mr. Robinson), we know that we did not see everything that was agreed in the comprehensive agreement of December 2004, because the documents published were accompanied by up to 100 different side-notes, letters and clarifications. Does that cover some of how devolution of justice and policing was to be handled and transacted? Does it mean that there has been a prior agreement involving Sinn Fein and the DUP about some of the models? If not, surely the likelihood is that we will face new legislation to provide for what is agreed in the future? If Democratic Unionist Members are going to tell us that none of that is agreed, and none of it will matter, why is the Committee being asked to pass this legislation?

The answer, as I said on Second Reading, is that we are being asked to deal with parts of the Bill that are something between a figment and a fig leaf. They are in the Bill to create a pretence that it is securing as a fact the devolution of justice and policing, so that Sinn Fein can pretend that there has been some significant new gain or development and then modify its position and
 
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language on policing. The fact is that the power to devolve justice and policing already exists. It is in the 1998 Act. The Bill only gives us options as to the furniture arrangement for the devolution of justice and policing. It does not take us substantively on to the devolution of justice and policing.

In fact, some of the models proposed in the Bill could delay delivery of the devolution of justice and policing, as, contrary to how Sinn Fein will present the passing of the legislation, the mechanisms in the Bill—which Democratic Unionist Members indicated they did not see—effectively provide a multiple lock on any prospect of the transfer of justice and policing, as well as on who can be appointed. We will make further points about that on future clauses.

Mr. Peter Robinson: I have been provoked by the hon. Member for Foyle (Mark Durkan) into responding, which I presume was his purpose. First, I remind him that for many years he was happy to slink off here and there with Governments and other parties, make side deals, announce them to the public after the event, and never mention them to the Democratic Unionist party. That was par for the course. When it comes to an occasion when he might be outside the door, and the Democratic Unionist party might be inside, apparently that is a gross betrayal of democracy.

Mark Durkan: I remind the hon. Gentleman that, first, his party withdrew from the negotiations leading to the agreement and refused invitations to a variety of subsequent negotiations and talks. On any occasion when the question arose as to whether talks should be on an inclusive or exclusive basis, we always insisted on an inclusive basis. We complained about the exclusive basis of talks over a number of years after the agreement. We always advocated that the DUP and all other parties should be invited and included, and insisted on building inclusion into the agreement.

The Chairman: Order. I think it might help the Committee if I suggest that we are moving well beyond the scope of the amendment. We have a full agenda today, and I think we would do better to remain strictly within the rules of order.

1.30 pm

Mr. Robinson: I am happy to follow your advice, Sir Alan, because I think that we were moving beyond not just the scope of the amendment, but the scope of historical fact. The revision of history by the hon. Member for Foyle is perhaps best left to one side.

Whatever the Committee does today will not bring the day when policing and justice powers are devolved in Northern Ireland one moment closer. No decision by the House of Commons will provide the enabling powers; the decision will be made only when the people of Northern Ireland are apprised of the method of devolving the policing and justice powers and of whom they will be devolved to. That is an essential issue, which is dealt with in later amendments.

We are not afraid of enabling powers, provided there is some democratic control over the enabling process. We have tabled a new clause, because the Minister will doubtless wish to honour the private undertaking—no
 
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doubt the hon. Member for Foyle would describe it as a side deal—that he gave us when he met my right hon. Friend the Member for North Antrim (Rev. Ian Paisley) and other colleagues in a Committee Room of the House. He assured us then that there was no mischief in the fact that a crucial safeguard had been deleted from the legislation. The Government have made no attempt to restore that safeguard by means of an amendment, however, and we shall want to discuss that later as well.

I understand that this is a probing amendment, and I am satisfied that the menu to which the hon. Member for Foyle referred is as expansive as possible, although, like the hon. Gentleman—but for entirely different reasons—I am not sure that involving the First and Deputy First Ministers is the most appropriate way of dealing with it. It is in the nature of policing and justice, especially policing, that it must be possible to make decisions on the spot when circumstances require it and the public interest demands it. A First and a Deputy First Minister acting jointly will need a longer time in which to make decisions. If the amendment did not just make provision but contained a requirement, I would have some misgivings about the ability of a First and a Deputy First Minister acting jointly to make decisions in the time required on crucial issues that would have an impact on public safety.

The hon. Member for Foyle seemed to think that the Office of the First Minister and Deputy First Minister was so overworked that the additional massive burden would be too much for them to carry. In fact, when the devolved Assembly was operating and we had a First and Deputy First Minister, they were foraging everywhere for work. They had so little to do that they were sticking their noses in other Departments, and removing and duplicating what was being done there. I have no doubt, therefore, that the office would have the capacity to take on more work.

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