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The Government will say that the provisions are necessary in order to implement St. Andrews, which states that a duty to comply with the code will be placed on Ministers. But we have heard tonight from the leader of the DUP, the right hon. Member for North Antrim (Rev. Ian Paisley), that St. Andrews is just a white document between two Governments, which has no meaning or standing. He does not himself feel obligated by anything else in St. Andrews. If that is his attitude, why should the Government feel obligated to make the provisions in St. Andrews that are under
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discussion, just because they are for the DUP? When the DUP does not want to abide by St. Andrews, that is okay by the Government. When the DUP wants everybody else to abide by St. Andrews and hold us ruthlessly to it, that is okay by the Government too, because the Government are just here to do the DUP’s will—that is just the way that this process is run at this stage.

It is not necessary to meet any legitimate concerns that people have about making sure that the ministerial code has good standing, because we have provided other amendments to this Bill that would do that. They would impose a duty in respect of the ministerial code through the pledge of office. If the DUP finds it significant and pertinent to have other commitments made through the pledge of office, why not also make commitments to the ministerial code and its standing through the pledge of office? Of course, the advantage of that is that a duty under the pledge of office can be enforced—should such a situation ever arise—by the International Monitoring Commission, not by the courts.

Stephen Pound (Ealing, North) (Lab): I am very grateful to my hon. Friend for giving way, and I am sure that he regrets as much as I do that no members of the DUP are in the Chamber to hear him. Regarding his comment about the former Minister for Agriculture and Rural Development, Brid Rodgers, is he seriously suggesting that if—God forbid—we had a similar foot and mouth occurrence, the person holding that office would be unable to take the emergency steps that she took? If so, that is a crucial point.

Mark Durkan: I want to make it clear to my hon. Friend that that is exactly what I am saying. The changes that the Bill will make to how such institutions operate, as served up to the DUP, will mean that anybody in Brid Rodgers’ position will be unable to act as she did. Potentially, no action could be taken. I was a member of the Executive at that time, and I know that not everybody agreed with the action that Brid Rodgers took. People had their own reasons to be unhappy about it. They did not like the idea of Northern Ireland ports being shut, but that is what she did, and it was effective Executive action. Those who had sensitivities about such an action being taken—and those who did not—should recognise that under these arrangements, a Minister will be obliged not to take such action. A Minister is now obliged to say, “Because a question might arise under the ministerial code, I can’t take that action. The most I can do is to find out when the next Executive meeting might be, at which I can raise the issue.”

Mark Tami (Alyn and Deeside) (Lab): Further to the point made by my hon. Friend the Member for Ealing, North (Stephen Pound), is it not incredible that no members of the DUP are present for the debate on an issue as important as this?

Mark Durkan: It is incredible on one level, but not on another. Members of the DUP feel that the Government are here to do their job for them. Indeed, my hon. Friend has made my point—members of the DUP can remain safe in the knowledge that the Government are making changes on their behalf, and
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defending and justifying those changes; they do not have to be here to justify them themselves.

That is what this process has boiled down to. It is a competition between Sinn Fein and the DUP to see who can take away the most—to see who can force the Government to stand up and justify their position, without their having to do it. If Sinn Fein can get the Government to present legislation here for them, without their having to be here, DUP members are probably asking, in the name of equality, why they should have to be here to seek their changes, if the Government can do it for them instead. That is exactly the problem that we face, and it shows the contempt with which this process and this House are being treated. The DUP Members know that they have already got what they want from the Government, and that is good enough for them, but it does not prevent them from trying to push back deadlines and throw other spanners in the works.

In fairness, one member of the DUP was here and did ask me questions, which I said I would address. Both she and the hon. Member for Belfast, East mentioned the decisions on maternity services in Belfast, including that taken by Bairbre de Brun, who happened to be a Sinn Fein Minister. The decision that Bairbre de Brun took was in keeping with the decision that the direct rule Minister preceding her was planning to take. It was based on the prevailing, overwhelming and clear medical advice that the best place to site maternity services in Belfast was the Royal Victoria hospital, because it had paediatric services. Contrary to the insinuation by the hon. Member for Belfast, East that Bairbre de Brun took the decision simply to favour her own constituency, I would argue that many of the objections to her decision were based precisely on the fact that the hospital was in west Belfast. I do not think that she took the decision because the hospital is in west Belfast; indeed, a lot of people disagreed with it because it is in west Belfast.

However, under this legislation, we could end up with no decision on such an issue. Everybody agreed that for the sake of maternity services in Belfast, a decision had to be taken in favour of one site. We could no longer maintain maternity services at both the Belfast City hospital and the Royal Victoria hospital. Under the Bill before us, a Minister of health might want to take such a decision again. A health Minister would have to go to the Executive and if three other Ministers disagreed—for whatever reasons, including their own partisan or constituency reasons—we would end up with no decision being taken.

Dr. Alasdair McDonnell: Does my hon. Friend agree that, with hindsight—perhaps five years on—the decision taken on the maternity hospital was the right one?

Mark Durkan: Yes, it was absolutely right, which is why I and most of my colleagues voted in support of the health Minister’s decision and against the censure attack when other parties in the Assembly sought to press for a vote. The final decision was not actually taken by Bairbre de Brun. Current direct rule Ministers are becoming increasingly familiar with judicial reviews, under one of which Bairbre de Brun and the Department were taken to court over the procedure.
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The court found that the procedure was deficient and the consideration process and decision had to be taken again. Finally, a direct rule Minister took the same decision and followed the same prevailing medical advice.

Another example is the supposed decision taken by the then Minister of Education, Martin McGuinness, on the 11-plus. Let us be clear. If the suspension had not happened, we would not have had the rushed announcement—inspired by public relations and other purposes. We should remember that there is a difference between an announcement and a decision: announcing that the 11-plus is to go after 2008 is one thing; taking a decision on what replaces it is quite another. That is the real issue at stake—but we never had such a decision. Only a few weeks previously, Martin McGuinness, as Minister, told the Assembly that a further consultation exercise would take place and that no decision would be taken without the matter first being referred to the Executive and coming before the Assembly. Only then, as things destabilised into suspension, did Martin McGuinness face the free context of no Assembly sitting and make his announcement in the hope that it would bind subsequent direct rule Ministers. One can understand the motives and considerations involved there.

I would reject what the hon. Member for Strangford (Mrs. Robinson) implied in respect of those two decisions. I would also point out that she was wrong in trying to say that there was absolutely no accountability or scrutiny in terms of north-south. Ministers could not go to a north-south ministerial council meeting without all of the papers for the meeting being shared not just with the accompanying Minister, but with the whole Executive. They had to inform and come before the departmental committee of the Assembly to speak to the issues and they had to make a full statement after the meeting to the Assembly, and be open to a full hour of questions.

After a while, unpredictably in these matters, the questions did not last anything like an hour because people were so content, and the business was straightforward. There was no big mystery to it. If anything, the question was why more north-south business was not happening, as it could be made more productive and more relevant by giving the bodies more rather than less to do.

I fear that the Government, by giving the DUP the sort of drive-by vetoes that it sought, are granting a concession too many. As I mentioned to the Secretary of State earlier, that is why we are glad that there is a sunset clause that would dissolve the changes if the DUP does not comply with the deadline.

Lembit Öpik: Would the hon. Gentleman nevertheless accept that his proposed change could work in the other direction, too, in that a DUP Minister could act unilaterally and not be brought to book by the Executive? The hon. Gentleman is focusing on what has happened, but we need to think less about the individual parties and more about the general principle, which could work in either direction.

Mark Durkan: I thank the hon. Gentleman for his point, but he appears to labour under the misapprehension that there is not already a fairly well
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developed ministerial code that clearly sets out when Ministers need to bring matters before the Executive—and if they are not sure whether they need to do that, when prior notification needs to be given to the Executive secretariat.

9.45 pm

We had also developed a sub-structure—a ministerial representatives committee, at which both departmental representatives and Ministers’ special advisers would meet to discuss what was on their agenda and on the radar screens of various Departments as a way of alerting other Departments, Ministers and parties to the sort of issues that we were developing. Much of the provision is therefore unnecessary. There was intelligent sharing of information and proper anticipation that could help in all the matters that we are considering.

Other amendments and improvements can be made to the ministerial code, the operation of the Executive and providing more scrutiny in the Assembly. We made proposals for all that, but the idea of rogue Ministers being able to go off, dream up their own stuff and do their own thing is palpable nonsense. Ministers simply could not do that, not just because they had to refer to the Executive but because some things have to stem from budgets. Ministers had to have their budgets approved not only by the Department of Finance and Personnel but the Assembly and the Executive.

On ministerial accountability for budgets, the SDLP proposed that, as well as the Finance Minister providing for the overall budget, all departmental Ministers should present their spending plans in their own dedicated sitting in the Assembly. They could thus justify their spending plans and be asked questions about their budgets. Again, that proved to be too much scrutiny and accountability for some people. For us, it would have been an aid to good government and transparency, and it could have worked. It proves that the DUP’s interest in the matter is not true transparency, accountability or better government but “gotcha” politics.

The danger is that if we go through with the provision as it stands, we will end up with gotcha and gotcha-back politics. For different reasons, the same applies to our difficulties with clause 6—the next provision to be considered.

Mr. Alan Reid: Clause 5 provides for preventing individual Ministers from acting unilaterally on significant or controversial matters that are clearly outside the scope of the agreed programme. Amendments Nos. 33 and 34 would remove the requirement for a Minister or junior Minister to act in accordance with the provisions of the ministerial code. Amendment No. 35 would add a new paragraph to the pledge of office, providing for Ministers to comply with the ministerial code.

I prefer the clause, because it is stronger. It provides for a statutory duty, rather than simply a pledge, to comply with the code. I am therefore not minded to support the amendments. However, the hon. Member for Foyle (Mark Durkan) made important points. He said that we could end up with legal action later that
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could perhaps overrule a Minister’s decision. I am worried that the clause could result in the Executive being bogged down in legal action. I hope that the Minister will deal with that in his response. If he wants to gain our support, I ask him to convince us that the problems that the hon. Member for Foyle mentioned will not arise.

Mr. Hanson: Rather like James Bond’s martini, I am shaken but not stirred by the amendment. I am shaken because my hon. Friend the Member for Foyle (Mark Durkan) suggests that I am doing the DUP’s work—I assure him that we are not. I am not stirred in that, although he makes an eloquent case, I cannot support it.

Clause 5 is there for a purpose—to ensure that we have a statutory ministerial code that places a duty on Ministers and junior Ministers to act in accordance with it, as set out in the St. Andrews agreement, which parties in the House supported on 13 October. The amendment would effectively remove the requirement for a statutory code and the duty on all Ministers to adhere to it.

Furthermore, amendment No. 34 would mean that the draft ministerial code prepared by either the transitional Assembly or the Secretary of State under schedule 1(4) would not be the ministerial code on restoration on 26 March 2007. I emphasise to my hon. Friend that I believe that a ministerial code is an important constituent part of the Bill.

The Secretary of State has a duty under schedule 1(4) to prepare a draft ministerial code to ensure that the Assembly has such a code in place. However, I assure my hon. Friend that the Assembly has the power to draft a ministerial code while it is the transitional Assembly. Only if the Assembly were unable to do so would my right hon. Friend the Secretary of State prepare a draft code as an important fall-back position to prevent the newly restored Assembly from being faced with immediate paralysis.

It is important that we have a ministerial code. Under paragraph 4 of schedule 1, the Assembly can draft a ministerial code during its transitional period. That could deal with some of the points made by my hon. Friend the Member for Foyle in the sense that, if there is agreement on the contents of the ministerial code, there is the potential for it to be drafted by the Assembly during the transitional period.

Mark Durkan: I assure the Minister that we have no problem with placing the ministerial code on a statutory footing. We do not believe that all the actions of Ministers should end up being justiciable because of the way in which the provision is made in the Bill. There are better ways to provide for such things.

Mr. Hanson: I accept and hear what my hon. Friend says, but these amendments would remove the duty on a ministerial code from the Bill. There would not be a ministerial code under the Bill if these amendments were accepted by the Government—nor could the Assembly draw up its own ministerial code—and my right hon. Friend the Secretary of State could not place a ministerial code before the transitional Assembly if it did not introduce such a code. These are serious
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amendments, the effects of which would damage the process begun at St. Andrews on 13 October.

My hon. Friend made the point that there might be occasions when the Assembly had to deal with emergencies, which could be referred to the Executive, thus delaying implementation. Nothing whatsoever in the legislation stops, for example, the transitional Assembly making proposals in the code to ensure that emergency circumstances were dealt with; nor is there anything in the ministerial code that stops the Executive calling an emergency meeting.

In the circumstances that my hon. Friend described earlier—for example, a foot and mouth outbreak—if a Minister decided to close the ports in Northern Ireland to prevent access and even if such a decision had to be referred to the Executive under the ministerial code as ultimately drafted, there would be nothing wrong with the Minister requesting an urgent meeting with the Executive that day, as would happen now in the Cabinet to determine such issues. My hon. Friend’s conjecture is not likely to happen in the event of serious emergencies. Such matters would be dealt with by the Minister taking a decision on non-controversial issues. Controversial or urgent matters could be dealt with by an urgent Executive meeting.

Mark Durkan: That answer would be very helpful if it had any relationship to the facts. Very clear requirements are laid down on the notice that must be given for Executive meetings and so on, so the Minister’s assurance does not apply.

Mr. Hanson: What I am saying—I hope that my hon. Friend listens and refers to it in Hansard tomorrow—is that if the Assembly compiles a code of practice for Ministers during its transitional period, it can build into that code the matters that are before it. I would certainly hope that that would be the case. On urgent matters, there is the power to call emergency Executive meetings. That is an important process to undertake.

Stephen Pound: I am not sure what the parliamentary protocol is for saying that the hon. Member for Foyle (Mark Durkan) asked precisely the question that I was about to ask. He was much more alert than I was, so I shall resume my seat.

Mr. Hanson: I hope that my hon. Friend gives me credit for giving way to him, even though the answer remains the same for both questions.

I understand the points made by my hon. Friend the Member for Foyle, but I simply say that we need a ministerial code, and we need to give the transitional Assembly the opportunity to compile that ministerial code. If it does not succeed in that task, my right hon. Friend the Secretary of State will impose a ministerial code. There must be a ministerial code for the effective working of the St. Andrews agreement.

Mr. Alan Reid: Will the Minister respond to the point raised by the hon. Member for Foyle (Mark Durkan) and me that Ministers could be unduly restricted, that legal action could follow if they took a decision outwith the ministerial code and that decisions could be overturned by the courts, causing chaos?

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Mr. Hanson: The hon. Gentleman raises an important point. We do not want gridlock in the Assembly; we want effective decision making. Any ministerial decision now, as the Government can testify, can be subject to judicial review and scrutiny by the court. I faced that as Minister with responsibility for finance and the Under-Secretary of State, my hon. Friend the Member for Inverclyde (David Cairns), has succeeded in winning a case of possible judicial review this very day. It can happen in all areas. The simple fact is that, as we have seen in the House today, we need a ministerial code to regulate relationships between the different parties. I commend the Bill to the House, and I urge my hon. Friend the Member for Foyle to withdraw his amendment.

Mark Durkan: I want to explain to the Minister that our amendments are not about removing a ministerial code. We helped to put the existing ministerial code in place. We sought further improvements to it, and we wanted it to be subject to a full vote by the Assembly. The only party in the previous Assembly that had trouble with the ministerial code was the DUP—the very party that now says that it is the champion of the ministerial code. I am reminded of the earlier observation from an American context that irony in politics is just hypocrisy with panache.

Mark Tami: Can my hon. Friend explain why DUP Members have not bothered to turn up for this part of the debate?

Mark Durkan: The DUP obviously believes that it is home in a boat with the vetoes that it has been seeking. At least that makes a change. For years, DUP Members have complained about being sold down the river. Now they feel that they are home in a boat and can leave the Government to do their bidding, even if they then thumb their nose at the Government in relation to other provisions.

Stephen Pound: They are probably watching the Celtic game.

Mark Durkan: Perhaps they are supporting Celtic in the final moments of the game against Manchester United. Unfortunately, a real dilemma has been created for those of us who, on any other occasion, definitely want Manchester United to win.

Mr. Hain: They lost.

Mark Durkan: So I understand, and I hope that it is some consolation to the DUP that that result has perturbed the rest of us in another way.

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