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17 May 2006 : Column 1024

Lembit Öpik: The Minister’s intervention is helpful, because the record will show that those amendments do not prohibit the setting up of separate departments for policing and for justice, if that is what the Assembly wants to do. I have no reason to think that the Assembly wants to do that, but it would be in keeping with the spirit of giving the Assembly the right to organise its devolved processes not to preclude that option. I thank the Minister for that clarification.

The SDLP amendments seem to make sense. One might think that it goes without saying that the First Minister and Deputy First Minister would not nominate a person for ministerial office if that person’s political party did not want them to take up that position. Given the history of politics in Northern Ireland, however, we know that anything is possible. I look forward to further clarification from the SDLP spokesman, whoever he may be, but I am sympathetic to the common-sense position adopted in the amendments because, as we all know from painful experience, when it comes to some matters relating to Northern Ireland legislation, sense is not common.

Mark Durkan: I will raise our concerns about new clause 3 and some of the Government amendments and our support for some of the other Government amendments, but first I shall speak in favour of our amendments Nos. 24, 26, 27 and 30. Furthermore, we will lend our support to Liberal Democrat amendments Nos. 14 and 15, at least in terms of this debate.

Our amendments aim to address a fundamental unfairness in the legislation. The starting point for understanding our amendments is the Northern Ireland Act 1998, which implemented the d’Hondt system in the Good Friday agreement. Under the 1998 Act, the nominating officer of each party, who is usually the party leader, appoints Ministers, and they have the power to fire those Ministers, unless, of course, the Assembly chooses to exclude Ministers from office for particular reasons.

By contrast, under the system in the Bill, the First Minister and Deputy First Minister would choose the justice Ministers. If they wanted to do so, they could nominate a member of another party, perhaps even against the wishes of that party’s leader, which happens from time to time in politics. In southern Irish politics, there is the famous example of Charlie Haughey appointing a member of the Fianna Fail parliamentary party to be European Commissioner to force a by-election to convenience himself.

Mr. Peter Robinson (Belfast, East) (DUP): There was also the Speaker in the previous Assembly.

Mark Durkan: As the hon. Gentleman has said, that also happened in the previous Assembly with the post of Speaker, when issues went on inside a particular party. On that occasion, Caesar did in Brutus, but such events have occurred for calculated reasons.

We must remember that the Bill provides that a ministerial appointment will count against the party whose member is appointed a Minister for the purposes of the d’Hondt system. The parties would therefore be denied their own legitimate and proper choice under the d’Hondt system by virtue of the First
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Minister and Deputy First Minister perhaps selecting somebody from another party without the agreement of that party or that party’s leader through the use of the parallel consent mechanism. That is fundamentally unfair, and it goes against the grain of the Good Friday agreement in terms of inclusion and the choices that rest with parties. It is a return to the principle of parties not being able to vet or veto each other’s appointments.

Amendment No. 24 seeks to address that matter by stating that the First Minister and Deputy First Minister may nominate a person for the justice portfolio only with the consent of that party’s nominating officer. So, contrary to what the Minister has said, we are not in the business of denying the First Minister and Deputy First Minister any role in the matter. We say that the First Minister and Deputy First Minister should only be able to nominate for the police and justice portfolio with the consent of a party’s nominating officer, given that that party’s d’Hondt quota will be affected and that its ranking of choice under d’Hondt will be materially affected.

Amendments Nos. 24, 26, 27 and 30 apply only to joint Ministers, as they are currently drafted. However, I contend that the same approach should logically apply to rotating Ministers, for which the Bill provides, or, indeed, to a Minister elected with parallel consent, which is covered by the Government amendment that the Minister discussed earlier.

Amendment No. 26 makes a consequential amendment to allow the standing orders to permit the nomination and election of joint justice Ministers. That would be helpful to ensure clarity on procedure in the same way as the standing orders for the Assembly under the Northern Ireland Act 2006 provide helpful procedural clarity on, for instance, how to manage if two sets of people are proposed as joint Ministers.

Amendments Nos. 27 and 30 address the dismissal of a Minister. As has been said, Ministers appointed under the d’Hondt system are appointed by, and may be dismissed by, the leader of their party—the Assembly may also choose to exclude them. Under the Bill, the First Minister and Deputy First Minister have the sole power of dismissal, although holding ministerial office counts towards a party’s d’Hondt entitlements. Even more significantly, the Bill is wide open for abuse, because it specifies that holding office as a junior Minister counts towards a party’s entitlements under d’Hondt.

The First Minister and Deputy First Minister could appoint a member of another party, using the votes of their own parties under parallel consent to secure that appointment, only to dismiss them and vote in a member of one of their own parties instead after the d’Hondt system had been run for other ministerial offices.

Mr. Dodds: I am trying very hard to follow the hon. Gentleman’s reasoning, which involves a lot of hypotheticals. As the hon. Gentleman deals with the minutiae of the mechanics of the appointment of a possible Minister, will he accept that the situation is surreal, because the prospect of the community having any confidence in the devolution of policing and justice powers in Northern Ireland is remote? We should consider the matter in that context.

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Mark Durkan: The hon. Gentleman makes his point. That may well be so, but the fact is that we are faced with this Bill, which is asking us to arrange the furniture in what may be castles in the air. That is the nature of the legislative exercise that we are undertaking. The Minister has indicated on several occasions that some of this goes back to previous discussions—perhaps more of that anon.

Under the Bill as it stands, the First Minister and the Deputy First Minister, who would clearly be fromSinn Fein and the DUP on current numbers, can appoint somebody from another party. They can vote that person into office using their own votes under parallel consent against the wishes of that party, thereby altering its d’Hondt entitlements. They can then subsequently fire that Minister or those Ministers and replace them with somebody from their own party, and the party that originally lost out under d’Hondt still loses out. It gets fewer Ministers than it is entitled to under d’Hondt by virtue of the First and Deputy First Ministers using the power that the Bill gives them. That is fundamentally unfair. The problem with the Bill is that control is given solely to the parties of the First and Deputy First Ministers, not to the Assembly or to anybody else.

Mr. Peter Robinson: Let me try to clarify something. I understood the hon. Gentleman to have said that if the First and Deputy First Ministers were to appoint a member of another party without the approval of that party, that would use up one of their d’Hondt entitlements. Where does he see that?

Mark Durkan: If the hon. Gentleman reads the schedules, he will see the various permutations that are offered for joint Ministers, rotating Ministers or any other types of Minister, all of whom have to be appointed before d’Hondt can be run. Schedule 2 provides that the d’Hondt arithmetic will already count the holding of a justice ministerial office as the holding of a ministerial office. Under the M plus one formula, when d’Hondt is run, M will include a justice ministerial office already held whether under rotating junior and senior or joint ministerial offices. That means that if Sinn Fein and the DUP appoint their own party members as joint justice Ministers, they will lose their first entitlement under d’Hondt. I am surprised that the hon. Gentleman does not know that. I remember that when he asked the Minister on Second Reading whether it would count towards d’Hondt, the Minister was unable to provide the answer, but the schedules make it clear that it does.

It could well be that Sinn Fein and the DUP do not want to use up their first entitlements under d’Hondt by appointing members of their own parties to be joint or rotating justice Ministers. They may pull the stroke of trying to appoint people from other parties tothose Ministries in order to preserve their own d’Hondt entitlements and reduce the d’Hondt ranking preferences of other parties, and then, at a subsequent date, use the powers in the Bill to dismiss those Ministers from other parties and replace them with members of their own parties, thereby securing more than their own d’Hondt entitlements and denying other parties their entitlements. That abuse is wide open and available under the Bill as it stands.

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Mr. Gregory Campbell (East Londonderry) (DUP): Like other hon. Members, I have endeavoured to follow the hon. Gentleman’s logic. Is it not all predicated upon a Member who has been nominated by the nominating officer of another party voluntarily indicating that he or she wishes to be nominated? That was not the position that the hon. Member for South Down (Mr. McGrady) took whenever he was nominated by his party leader but declined. If someone declined, the situation would not materialise.

Mark Durkan: The hon. Gentleman is wrong about that. Under the Bill as it stands, even with the new Government amendments, no consent whatsoever is required from the nominating officer of the party.

Mr. Campbell: I said consent from the Member nominated.

Mark Durkan: Indeed—the consent of the Member nominated. That applies on a standard basis under d’Hondt. The First and Deputy First Ministers from Sinn Fein and the DUP might well hope that they can inveigle Members from other parties to take such posts against the wishes and advice of their own parties. They can vote them into post, even against the votes of their own party, and still deny that party its entitlements under d’Hondt.

2.15 pm

Dr. McCrea: Is not the hon. Gentleman casting aspersions on his own Members? Is he afraid of them turning Turk and taking a post that he does not want them to have?

Mark Durkan: I am certainly not afraid of that. I have doubts and worries about other parties, given the rate at which the DUP has been able to inveigle defections and all sorts of disloyal activities in other parties. That is where I have my doubts. I would also note the Alliance party’s occasional proclivities for running after a post that might happen to become available.

We need to ensure that nothing in the Bill creates new difficulties and unfairnesses. The Bill as it stands, even with the Government amendments, does create an unfairness. As things stand, the First and Deputy First Ministers can bring about a situation whereby their parties hold the first ministerial and deputy first ministerial offices and the justice ministerial office, as well as other ordinary ministerial offices, as though they did not hold the justice ministerial office. If the Government are serious in their intent to ensure that the justice ministerial post counts properly towards d’Hondt and does not materially affect or prejudice any party’s d’Hondt entitlement, they should be prepared to accept amendments Nos. 27 and 30, which seek to rectify that possibility.

Amendment No. 27 would strike a compromise that is contrary to the Minister’s suggestion that we are trying to strip the First and Deputy First Ministers of any role in the appointment of justice Ministers. It would provide that the nominating officer of a party can dismiss a justice Minister from his party, just as the party leader can for ministerial offices allocated under
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d’Hondt. By way of compromise, we would also allow the First Minister and Deputy First Minister to dismiss a justice Minister, even one of another party. However, amendment No. 30 would provide an important safeguard. If they dismiss a justice Minister and replace him with a Minister from a different political party from that of the outgoing justice Minister, d’Hondt has to be re-run for ordinary ministerial offices as well. That would build in a protection against abuse by removing the temptation for it—likewise, for example, if the Assembly or the First Minister and Deputy First Minister refused to support the replacement that a party leader would want where a vacancy arose because of the resignation or death of a justice Minister from that party.

I accept that it is important to guard against a party leader trying to abuse the system by then sacking his own justice Minister and refusing to allow the First Minister and Deputy First Minister to nominate anybody at all from their party so as to trigger a rerun of d’Hondt for all ministerial offices. I am seeking to prevent the temptation for abuse and tactical manoeuvres by the First and Deputy First Ministers and by party leaders.

Mr. Hanson: I would say to my hon. Friend—I mean this in the nicest possible way—that we are in danger of legislating for every single possibility. I am trying to put in place mechanisms for the devolution of police and criminal justice that have the broad support of the Assembly and provide an opportunity to appoint Ministers. He may be looking at this in too much detail.

Mark Durkan: In that case, I would ask the Minister why we are dealing with any of this legislation at all. We are dealing with issues of permutations. When other parties are insisting that they need safeguards and triple locks to protect them from all sorts of perils, is it not right that we who are here to legislate on these matters should ensure that we do that properly, so as to prevent unintended problems and contrary effects to those that the Government claim to intend?

We have tabled amendments that would avoid re-running d’Hondt on a tactical basis by parties. That would mean that the First Minister and Deputy First Minister could nominate a person from a different political party, without the inconvenience of re-running d’Hondt for ordinary ministerial offices. I ask the Government to reflect on our amendments, even if they do not accept them now. Perhaps they will consider introducing their own amendments elsewhere that would have a similar effect. They would protect the integrity of what the Government say that the Bill is trying to achieve, namely to provide arrangements for a menu of options from which to appoint justice Ministers without doing any damage to the basic architecture of the inclusion formula in the Northern Ireland Act 1998.

I also want to express our support for the Liberal Democrat amendments Nos. 14 and 15. They would make it clear that justice Ministers could be elected by cross-community consent, in contrast to the present requirement for parallel consent alone. The Good Friday agreement and the Northern Ireland Act 1998 provide for only two occasions on which parallel
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consent alone is required: the election of the First Minister and Deputy First Minister, and in the context of the special equality procedure. We see no reason why that especially high threshold should be required solely in those circumstances.

We are obviously not content with the Government’s new clause 3 and consequential amendments Nos. 5, 6, 8 and 9. Section 4 of the Northern Ireland Act already states that devolution of any additional functions cannot occur without prior Assembly cross-community support. However, new clause 3 proposes that additional requirements be introduced only for policing and justice. The First Minister and Deputy First Minister must pray that the matter be devolved, and a vote by parallel consent—and only by parallel consent—must also take place. For no good reason, that is being required here. But perhaps there is a bad reason, and perhaps this goes back to previous deals and understandings.

After the comprehensive agreement in 2004, the hon. Member for Belfast, East (Mr. Robinson) boasted:

The Government have refused to publish those documents, despite their assurance to the House on18 April that

How inclusive are more than 100 side deals and secret understandings with the DUP and, presumably,Sinn Fein that the rest of us are not allowed to see? Are these proposals the by-product of them? There seem to be clear indications that that is the case. Martin McGuinness is on public record as saying that the whole issue of how the devolution of justice and policing was to be dealt with was all done and dusted in the negotiations in the run-up to the comprehensive agreement. Are we now seeing the result of all that doing and dusting here in the legislation? Is that why the Minister cannot accept even a straightforward amendment such as the one tabled by the hon. Member for Montgomeryshire (Lembit Öpik)?

Lembit Öpik: In the hon. Gentleman’s opinion, would it be helpful if the Minister could give a categorical assurance, for the record, that no side deals were involved in the formulation of this element of the Bill and the Government’s amendments to it?

Mark Durkan: It would be helpful and interesting if the Minister could do that. Whether it would be convincing is another matter.

Mr. Hanson: I hope that the hon. Gentleman will take this in the spirit in which it is intended: I have made no side deals on this matter.

Mark Durkan: I know exactly the spirit in which that was intended, and I take the Minister’s assurance in exactly those terms.

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Why will not the Government lay in the Library all the other commitments that they have given in this regard, so that the rest of us can at least see what they are and, if necessary, debate them in the Chamber? A member of the SDLP sought under the terms of the Freedom of Information Act 2000 to gain sight of the various side deals, many of which presumably affect strand 1 institutions and matters such as the devolution of justice and policing. However, we were deniedsight of any of those documents on the ground that their disclosure might colour or jeopardise the Government’s relationship with the Irish Republic. Yet they deal solely with strand 1 matters, which the DUP says that it is very good at safeguarding, saying that there is no Irish Government interest or input in them. We cannot have sight of any of the deals that were, according to Sinn Fein, done and dusted, and that obviously matter so much, according to the hon. Member for Belfast, East, on the ground that they affect the relationship with the Irish Government.

We as legislators have the right to know where all this is coming from, as well as wanting to see where it is all going to. The SDLP wants a process of equals, because that is the only way to build trust. It is the only way to make progress. That is why we ask the Government to live up to the commitment that they made to inclusive negotiations in Parliament this month, and to let all see all.

The Minister will be glad to hear that, by contrast, the SDLP is happy to support Government amendments Nos. 2, 3 and 7. These allow for the possibility of a single Minister to be elected by cross-community support and by parallel consent. That said, that might not be our preferred option for the appointment of a justice Minister. However, if the point of the Bill is to provide for a menu of options from which the parties may choose, that option should be included.

The reason for all this difficulty, and the reason why nearly all of us have been caught trying to put the cart before the horse, is that the Government have launched us into legislating for these options at a time when the parties have not been truly negotiating and debating them. That is why the Minister is having difficulty in presenting the Bill, and why the rest of us are having difficulty in presenting our amendments.

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