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6 Feb 2007 : Column 731

Mark Durkan: As the Minister said, new clause 5 introduces a fifth model on top of the four that the 2006 Act gave us. When we debated that Act, I predicted that the Government would come back with at least one additional model because, from the nature of things, it would obviously be needed. The Minister and other hon. Members shook their heads, but lo and behold we have an additional model, this time as a default model.

The Minister emphasised that the Secretary of State would use the powers in new clause 5 if the one stumbling block to the devolution of justice and policing was the departmental model, but it is highly likely that the departmental model will not be the stumbling block. Other considerations or calculations will cause the DUP to resist the devolution of justice and policing by May 2008 or at some other time. That is the fatal flaw arising from the 2006 Act and it still needs to be addressed. We have argued to the Government that giving the DUP the triple lock in such an indefinite and unfettered way means that the date of May 2008 is merely aspirational. No matter how many times the Secretary of State says it, no matter how many times the Prime Minister says it, no matter how many times Gerry Adams and Martin McGuinness say it, the date remains aspirational at best unless the Government back amending legislation to make the date of May 2008 a definite, determined backstop, a time by which the devolution of justice and policing must be achieved.

4.30 pm

Notwithstanding earlier welcomes for the advance in Sinn Fein’s position on policing, Members should recognise that it involves qualifications. Yes, Sinn Fein is calling on people to report crime to the police if they are victims, and Gerry Adams has even said that young republicans, indeed republicans of all ages, should be free to join the police. But Sinn Fein is still saying that it will not join the institutions of policing unless and until the DUP agrees on a definite date for the devolution of justice and policing. For as long as the DUP has a veto on an indefinite basis, Sinn Fein will continue to resile from its responsibilities on the Policing Board. The main aim of new clause 2 is to place a time limit on the veto, thereby removing Sinn Fein’s excuse for not stepping forthwith into the institutions of policing and the positions that would come to its members following the election.

Apart from the fact that the provisions of new clause 5 will be invoked only if the model is the outstanding issue, the new clause does nothing to deliver the devolution of justice and policing by May 2008. It does not remove the veto preventing the transfer of powers, and it does not resolve the question of appointment. As the hon. Member for Montgomeryshire (Lembit Öpik) pointed out, if it is left to the Assembly it could prove difficult to effect an appointment in the Assembly. We have more than a triple lock or a quadruple lock; we have what could be described as a double version of that, which we have tried to disentangle in new clause 2.

The Government’s new, fifth model involves a Justice Minister and a Deputy Justice Minister. Who does the Minister think would take the job of Deputy Justice Minister? It is a complete non-job, and I think that a person would have to be certifiably mad to take it. For
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one thing, it is a temporary post, to be reviewed after two years and 10 months. Regardless of what lead responsibilities the Deputy Justice Minister may have, agreement must be secured from the Minister, and also from the First and Deputy First Ministers. Securing agreement from, potentially, three parties will be a curious enough affair in itself. Moreover, the deputy Minister will be under the direction of the Minister, as will everyone else in the Department.

Mr. Hanson: How is that different from what goes on in Government generally? A Prime Minister appoints a Secretary of State; the Secretary of State appoints deputy Ministers, who have delegated responsibilities.

Mark Durkan: As the Minister is aware, we are not dealing with that situation here; we are dealing with the situation in Northern Ireland, and the suggestion has been made that, because there could be difficulties in respect of parties allowing other parties’ representatives to take up the post of Justice Minister, as a solution the post of deputy Minister might be added to the mix. It is thought that that post might have a significant balancing role. However, as the Minister pointed out, the deputy Minister will not attend the Executive, although the Secretary of State’s Christmas statement contained the suggestion that the deputy Minister might attend the Executive from time to time—that they might have a sort of high-chair at the Executive table in which they would be allowed to sit from time to time.

Why any party, or any member of a party, would want a post in such circumstances is beyond me. If a default is needed for the current model, I am not sure that the default that the Government have come up with is the best or most sensible one. This default will be hard to implement not only in terms of parties agreeing to other parties taking positions, but it will be difficult for some parties to agree to themselves taking up those positions.

Our new clause 2 is an attempt to break the logjam in the devolution of justice and policing. I say openly and honestly that we are seeking to circumvent the indefinite DUP vetoes that are in place courtesy of the triple lock and of Sinn Fein and the British Government agreeing to them in the comprehensive agreement and in the Northern Ireland (Miscellaneous Provisions) Act 2006. New clause 2 would provide that if the Assembly has not passed legislation setting up a new justice Department by 1 May, the Secretary of State may make an order setting up a new justice Department, to which powers will be devolved under the direction and control of the First Minister and the Deputy First Minister acting jointly.

Mr. Gregory Campbell: The hon. Gentleman talks about the Social Democratic and Labour party’s amendment circumventing the triple lock. How would it contribute to better community relations in Northern Ireland if the wider community was not supportive of setting aside the triple lock and there was a kickback or resentment and a growing escalation of communities’ anger at the possibility of that lock being bypassed? How would he present that argument, alongside enhancing confidence in the community about the devolution of policing and justice at some point in the future?


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Mark Durkan: I thank the hon. Gentleman for his question, and I shall respond to it in the following way. Sinn Fein is using as its excuse not to take part in the policing arrangements the fact that it does not have a definite date for the devolution of justice and policing. New clause 2 would give a definite date for that devolution, thereby removing that excuse from Sinn Fein and ensuring that it will have to participate in the Policing Board when nominations to it take place after the election. I believe that if Sinn Fein fully participates in the policing arrangements, community confidence will significantly rise. People have welcomed the progress made in Sinn Fein’s position as a result of the resolution passed at the recent ard fheis; would not confidence be even greater if Sinn Fein were to implement fully that resolution with no qualifications and no holding back?

Under our amendment, the triple lock would still apply until May 2008; parties would have discretion and choices as to what form of devolution they want and when exactly they want that to be activated. However, by May 2008 devolution would take place, not with the Secretary of State having to impose a model or having to impose the appointment of Ministers—as he suggested might possibly be the case in his paper issued over the Christmas period—but simply by the provision of the default that the powers would go to the Office of First Minister and Deputy First Minister. My belief is that that would concentrate the minds of the people in that office, because if they had any sense they would not want those functions resting long in their office.

Lembit Öpik: Does the hon. Gentleman not accept that much of what he wants is contained in new clause 5? I am reading it so I am completely sure that it says that the Secretary of State can create a new Department that manages policing and justice if there is no reasonable prospect that the Assembly will pass an Act of the relevant kind. Therefore, the hon. Gentleman should welcome new clause 5 because it already gives the Secretary of State the chance to circumvent the triple lock.

Mark Durkan: I thank the hon. Gentleman for his intervention. The Secretary of State has said on other occasions that he is introducing new clause 5 partly in response to our arguments, but the fact is that it does not compare at all with new clause 2. Under new clause 5, the Secretary of State would simply impose a departmental model if that was the last outstanding issue—it would not secure devolution of justice and policing by May 2008. If, however, there were other obstacles to devolution, the Secretary of State would not produce a model and the British Government would take no action to deal with the obstacles.

New clause 2 makes it clear that devolution of justice and policing can and will happen by May 2008, and it gives the First and Deputy First Ministers every incentive to use their powers to make proposals before that date, and to use their influence to ensure that devolution is passed in the Assembly according to a suitable model before May 2008. Otherwise, the functions will transfer to their Department, and they will then be free to use the Assembly’s procedures to create another department, and to transfer the functions. However, our political goal in new clause 2 is to ensure that we have a definite date for the devolution of justice and policing.


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Mr. Alan Reid (Argyll and Bute) (LD): The hon. Gentleman says that he wants a definite date, but his new clause 2 states that

such a draft order, so it is a flexible date, not a deadline.

Mark Durkan: New clause 2 says that for the very good reason that that form of words has been used throughout Northern Ireland legislation. As we know, Secretaries of State at times claim that they can foresee particular prospects—that certain other things might well be in the offing, and that they would not want to trip up some other, existing development. That is why we need to deal with the matter in this way.

Mr. Bone: I understand entirely what the hon. Gentleman is saying and what the Minister said, but new clause 5 is no different from the hon. Gentleman’s new clause. The point is what it actually says, not the interpretation.

Mark Durkan: New clause 5 is different in a number of respects. First, it imposes a model that we clearly do not favour, and once it is imposed we will be stuck with it until the Deputy First Minister’s role is reviewed and changed after one or two terms. Our proposal would ensure that, if the Assembly had agreed on a model and people had not agreed on a date before May 2008, we got devolution, and that the Secretary of State did not impose a model. The powers would simply transfer to the office of the First Minister and Deputy First Minister, who could dispose of the powers under a subsequent order in the Assembly. So new clause 2 would give us a definite date and would ensure that we properly respected the difference between the role of the Assembly and the devolved structures, and of Westminster and the Secretary of State. It is clear, however, from earlier discussions and from the interventions of many Members that new clause 5 would lead to confusion, so new clause 2 is different in a number of key respects.

Lady Hermon: I am most grateful to the hon. Gentleman for giving way. I have listened very carefully to him and I am growing increasingly frustrated with his argument. I am particularly astounded by it, given that he and his party claim to be a pro-agreement party. He knows perfectly well that, according to the agreement, the transfer of any currently reserved powers needs the broad support of the parties. Indeed, the Northern Ireland Act 1998 points out that cross-community support is needed for the devolution of policing and justice. How can he reconcile new clause 2 with his party’s claimed pro-agreement stance?

Mark Durkan: We are a pro-agreement party—we are completely pro the devolution of justice and policing. It is a priority for us and it has been delayed for far too long, which is why we are trying to determine a date on which it is achieved. The hon. Lady mentions the provisions of the Good Friday agreement and of the 1998 Act. Under the latter, there must be a vote in the Assembly with cross-community support. The Northern Ireland (Miscellaneous Provisions) Act 2006 proposed a tighter definition requiring a vote by parallel consent. On the
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basis of the current numbers, the vote would be entirely in the control of Sinn Fein and the DUP.

I tabled an amendment in Committee to reverse the triple lock on cross-community support, as opposed to parallel consent, and the hon. Lady who now preaches to me about consistency voted against it. She voted against adhering to the provisions of the 1998 Act. The inconsistency is in the hon. Lady’s position, not in ours.

Lady Hermon: I am grateful to the hon. Gentleman for allowing a so-called preacher to intervene again. We are not talking about the devolution of health or education, which are already with the Assembly. We are talking about the devolution of policing and justice, which are fundamental, key issues in Northern Ireland. Surely the hon. Gentleman should stick to the provisions of the agreement, which require

I have not invented that and it was not dreamed up by the Ulster Unionist party: it is in the Belfast agreement. That is the position that I have defended.

4.45 pm

Mark Durkan: The date of May 2008 is in the St. Andrew’s agreement. We accept the date and we want to give it real meaning. It is an issue, because unless we create more certainty around it, uncertainty and confusion will grow around Sinn Fein’s position on policing. The process can do without that. More confidence would be created if we had certainty about a date for devolution of justice and policing, which would allow or force Sinn Fein to commence its full involvement in policing. That could create more confidence, and we would then have achieved agreement and sufficient confidence before May 2008 to ensure that there is agreement in the Assembly. The purpose of our clause is to ensure that parties have every incentive and we have the best circumstances before May 2008.

New clause 4 deals with another matter of deep concern to the SDLP. In 2005, the Government announced that primacy in intelligence policing in Northern Ireland would pass from the PSNI to MI5. That is due to happen in October and it was re-confirmed, as the Minister suggested, in a discussion paper on the devolution of justice launched last February.

The Government argue that after the devolution of justice a devolved Minister for justice from a particular party could not receive briefings on subversive activity. Nobody is really arguing for that. The issue of who gets intelligence information—the devolved Minister for justice or the Secretary of State, if it is to do with national security—is a separate issue from that of who has primary responsibility for gathering the intelligence. The SDLP argues that the PSNI should continue to have primacy in intelligence gathering, including on subversive activity, as provided by Patten. The Government want to give it to MI5.

Patten envisaged that on matters of national security the Chief Constable would report not to the devolved Minister for justice but to the Secretary of State. We accepted that, but Patten also envisaged that the Chief Constable would do the reporting, not MI5. The Government’s proposals are a departure from Patten.


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I shall explain why the change is so wrong. First, the PSNI has undergone the Patten reforms, whereas MI5 has not. We cannot ask how many people work for MI5, including how many of them are Catholics or Protestants. It will not tell us. We are not allowed to know anything about the organisation, but we are asked to have confidence in it. It is not only nationalists who should have a basic problem with that. The enlarged role for MI5 could destabilise the new beginning to policing.

Secondly, organised crime and subversive activity have gone hand in hand in Northern Ireland, which is why one organisation—the PSNI—should be in the lead when it comes to monitoring and tackling them. Giving any of that responsibility to MI5 carries the huge risk that it will do what it and the RUC’s special branch did in the past—hog intelligence for its own reasons and not share it with the police officers responsible for combating and pursuing those crimes and for initiating prosecutions. As a result of that, the guilty got away with murder and other crimes, so we have cause to be concerned about the implications of passing that responsibility to MI5. The House need look only at what happened with the Omagh bombing: it took MI5 seven years to pass on a warning, which the PSNI received only last year.

Thirdly, many welcome changes in matters such as informer handling and intelligence sharing in the PSNI have stemmed from the Patten report and the Stevens report into collusion, and from the Omagh report and the review subsequently commissioned by the Northern Ireland Policing Board. Taking away primacy in intelligence policing undermines those successful and important changes. Indeed, no one has any idea whether the safeguards recommended by the Police Ombudsman for Northern Ireland in her very significant McCord report will apply equally to MI5. The Chief Constable has said that they will apply to the PSNI, and that is welcome, but will that still be the case when the change to primacy in intelligence policing is introduced? There is a clear danger of the guarantees and protections in Patten being diminished or eroded.

Fourthly, the PSNI is accountable to the Policing Board and the police ombudsman for any human rights abuses perpetrated by its officers. There are structures that ensure that nationalists, Unionists and everyone else may have growing confidence that concerns or complaints about the PSNI will be dealt with, but that is not the case with MI5. The Government have continually resisted calls for MI5 officers in the north to be subject to the police ombudsman.

Fifthly, the Patten report made it explicit that

That key recommendation will be undermined or compromised if MI5 takes over primacy in intelligence policing. Again, the Omagh bombing gives an example of what can go wrong. Sam Kincaid has told the Omagh families that MI5 had intelligence that there was going to be an attack on Omagh, but that it did not pass it on. When pressed on the matter, Chief Constable Hugh Orde said MI5 held nothing back from the investigation into the bombing, but he did not deny Sam Kincaid’s allegation that MI5 did not pass on information before the bombing. We can expect
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such problems to arise more often if MI5 takes primacy in intelligence gathering, and the potential consequences are serious.

The question of MI5’s future in Northern Ireland has implications for the conduct of the devolution of justice and policing. The British Government will determine what is meant by the phrase “national security” and the scope of the work done by the intelligence services, so the role given to MI5 could grow. Moreover, if it has primacy in intelligence policing, its work will be outside the purview of the devolved Administration and Assembly. In the Second Reading debate on 13 December 2006, the Secretary of State told us that the Bill would give the Director of Public Prosecutions powers to issue certificates to ensure that there would be no jury trials, and that he could do so on the basis of information from the security services—MI5.

The Bill also includes provisions that would permanently recycle special powers for the police and the Army that were previously only temporary during the worst of the troubles. The legislation will remain under the control of the House and the Secretary of State; it will not be controlled by the devolved Assembly. A devolved Minister for justice could receive representations from defendants facing trial in courts funded and administered by the court service that serves the devolved Ministry stating that they had not been allowed a jury trial and had been given no reasons why. The devolved Minister would be a mere spectator in a hopeless and helpless situation. He would be unable to amend or restrict the special powers of the police—although we do not say that the Minister should interfere in the exercise of police powers; unlike others, we do not believe that Ministers should boss the police.

Politicians should not boss the police and we must ensure that policing in Northern Ireland is not seen as the accessory of partisan controls or interests. That is why the Patten controls are important. However, we do not want devolved Ministers, a devolved Assembly and its Committee left in a completely hopeless and powerless state, while significant activities that impinge on policing and justice, and which they have no power to amend, advise or question, take place beyond their control. That raises fundamental credibility issues about the future of the devolution of justice and policing. That is not what the Social Democratic and Labour party means by the devolution of justice and policing, and I should be surprised if it is what Sinn Fein means when it says that it wants to ensure that there is no lingering British control or interference in relation to justice and policing. The Bill and other measures proposed by the Government, including MI5, provide for just such ongoing control by the “securocrats” and other interests.


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