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The draft of an Order laid before Parliament under subsection (7A) may contain supplementary, incidental, consequential, transitional or saving provision?
Surely that gives the Secretary of State wide latitude to do just about whatever he wants. We are not talking about the current Secretary of State for Northern Ireland and the current circumstances and political geography of Northern Ireland; we are discussing any future circumstance where, out of expedience, a Secretary of State for Northern Ireland might do a side deal to devolve policing without, for example, DUP support.
Mr. Robinson: The hon. Gentleman will have recognised the words that he has quotedI have been in this House for some 28 years, and I have seen them dozens of times. The Secretary of State cannot use the powers in the Bill to take powers that go well beyond the scope of the legislation. The hon. Gentleman is arguing that the consequential powers allow the Secretary of State to do whatever he wants, provided that it falls loosely under the heading of policing and justice. Of course, the Secretary of State cannot do that, and the approach must be consistent with the scope of the legislation.
Mr. Laurence Robertson: Surely that will depend on what the Secretary of State puts in the order, which, as the hon. Gentleman knows, is not amendable. Such an order would go through, because the Government have a majority. Proposed new subsection (7A)(b)
provides that the purpose of the department is to exercise functions consisting wholly or mainly of devolved policing and justice functions.
Mr. Robinson: I do not need to extend trust, because ultimately the Assembly is able, as is the First Minister, to exercise the power to ensure that the powers are not devolved. I agree that it is a bit nonsensical for the Government to have the power to set up a Department if powers are not to be devolved to it. The Ministers rationale is that he would not be exercising those powers unless it was expected that, by doing so, he was assisting the process towards setting up a policing and justice Department that would have powers devolved to it. That would be the sensible exercise of his power. However, it is not for me to argue the Governments casethat is up to the Minister. I am giving him the benefit of my view of what the legislation says; if I am wrong, he will put me right at the end of the debate.
The reality is that the triple lockit has also been described as a quadruple lock is now firmly in place, so the powers cannot be devolved, unless, of course, the Government were to come back to this House with
primary legislation, as they always can. [Interruption.] The hon. Member for Foyle would encourage them to do soalthough he has never explained to the House how policing and justice powers that were to be imposed on an Assembly could ever be exercised in defiance of it. With cross-community voting, it simply would not work. That is a further protection for the Assembly even beyond the triple lock mechanism. The triple lock mechanism is a sensible provision to have and I am glad that the Bill does not interfere with it. It is a vital element in providing confidence not only to the Unionist community, but to the community in Northern Ireland generally.
I mentioned the DUPs attempt to help the Government to get round the difficulty of there being a section of the Assembly in which people would not have confidence as regards the devolution of powers. We have to recognise that there will be individuals who will not gain the support of both sections of the community. I am therefore surprised that the model that the Government provide in the Bill is deficient in several ways. I agree with the hon. Member for Foyle that the Minister has made no case for why this Department should have a deputy Minister. I do not understand the Governments logic in that regard.
The hon. Member for Montgomeryshire brought up the question of the distinction between a junior Minister and a deputy Minister. To defend himself against that argument, the Minister prayed in aid the fact that there is a First Minister and a Deputy First Minister. That was not a good analogy to draw because, first, they are jointly elected in the sense of its being a joint office; secondly, they have the same joint control of that office; and thirdly, they are both in the Executive. The distinction between those Ministers and a junior Minister was drawn to show that junior Ministers were under the control of the Minister of any Department and therefore subservient. In bringing the status of deputy to the policing and justice Department, the Minister seems to be saying, This person is slightly more than the junior Minister, but he has ended up confusing him with someone who has a joint office.
I am not sure that the term, deputy, is helpful, not least because there is no need for such an individual in the first place. The SDLP argued strongly in the Preparation for Government Committee that many of the policing and justice powers are already devolved, and there is some truth in that. Many policing powers are devolved to the Policing Board and to other bodies, and that applies to justice powers as well. So, we are left with a residue of policing and justice powers, with which any sane individual could amply cope alone, without a deputy or junior Minister. The need for the post does not exist.
However, the matter becomes even more peculiar because the party from which the junior Minister comes does not have to pay anything for it when Departments are allocated. To some extent, it is a freebee. Although creating the Minister for the Department reduces the allocation under dHondt, that does not apply to the deputy Minister. There is no need for a deputy Minister. It causes confusion and is
unsatisfactory. I do not understand the reason for the provision. The Democratic Unionist party did not advocate it and the SDLPwhich might receive the officeclearly does not want it. Further problems are therefore likely to arise down the line.
I want to consider an issue that, I am sure, the hon. Member for Montgomeryshire meant to raise. The new clause requires the Minister and deputy Minister to come from the two main designations. One might consider the overall Assembly and decide that if somebody with cross-community support was wanted for one of the posts, a member of the Alliance party would have a good chance of fitting the bill. That might not be the case, but, considering the matter from a distance, people are entitled to say that a centre party such as the Alliance party would have a better chance than most of gaining cross-community supportyet it is excluded from the measure.
I should have thought that a bold defender of the centre ground, such as the hon. Member for Montgomeryshire, would be on his feet berating the Minister for excluding his colleagues in the Alliance party, but he failed to do it. I shall give him a chance to do it now, if he wishes.
Lembit Öpik: I respectfully point out that I fully expect the Alliance party to be the largest party in the Assembly after the elections. [Laughter.] I can hear from DUP Members response that they are frit.
The Act may provide... for the department to be in the charge of a Northern Ireland Minister elected by the Assembly; and... for that Minister to be supported by a deputy Minister elected by the Assembly.
Does the hon. Gentleman claim that that provision would be governed by the majority requirements that he highlighted? I am willing to accept his comments if that is the caseperhaps he could clarify that. However, he fails to grasp the fundamental point that any consequential changes could be made under the new clause, and there is no guarantee that the condition that he described would be respected.
Mr. Robinson: Such are the hon. Gentlemans expectations that I am sure that he expects no rain in Northern Ireland in February and March. I suspect that his expectations will not be realised. Indeed, the Alliance party may not even get its leader returned under current circumstances. However, the hon. Gentleman must acknowledge that it is inherently unfair for a party to be excluded when one of its members could gain cross-community support and be a potential candidate for a post. I defend that positionI obviously do it much more vigorously than the hon. Gentleman.
Mark Durkan: I am glad that the hon. Gentleman has raised the matter. Clearly, he agrees with me that for the Government to insistas they do in relation to the triple lockthat the model and who fills the posts must be for the Assembly to determine, but restrict the Assemblys choice through the new clause, is indefensible.
I do not accept that there should be the two positions, as I think that the Assembly should be free to choose any Assembly Member whom it
believes can command the necessary degree of support in order to have policing and justice powers devolved. The provision unnecessarily limits the scope of the choice available and discriminates against the Alliance partya party that believes in freedom and does not believe in discrimination. The Government, who so often lecture us about those matters, should be ashamed of themselves. Indeed, I have to say that my party argued that the Alliance party should have membership even of the Sub-group on programme for government. We may not have been as expectant as the hon. Member for Montgomeryshire about the number of Alliance party members that would be returned in an election, but we believe that the potential is still there, so we should not take the electorate for granted on any of these matters. The Alliance party should have been included in the Sub-groupand we said so.
In order to move on to debate other matters, I would like to conclude my remarks by saying that we are not getting excited about this piece of legislation because we all recognise that even though it is deficient, it will not be the last word on the issue. The safeguards that my community needs are in place. I believe that the House will be asked to return to this matter and will no doubt be required to legislate further on it in future, but we make it clear now that we want policing and justice powers devolved at the right time and in the right circumstances.
Mr. Laurence Robertson: We have had a very long debate on the new clauseand deservedly so, as it is extremely important. I go back to the Ministers words when he first proposed the legislation some time ago. He mentioned the historic decision of the ard fheis of Sinn Fein to support policing, but it is only rightfor the reasons provided by the hon. Member for Belfast, East (Mr. Robinson)not to agree to devolve policing and justice just yet. We want to see what Sinn Fein means by support for the police. The speech of Mr. Adams was littered with the words suggesting that this was the way to the the united Ireland that he desired. Perhaps we should see whether the murderers of Mr. McCartney or the perpetrators of the Northern bank robbery are handed over. It remains the polices view that that robbery was carried out by the IRA, so the IRA has a long way to go to prove that it means what it says, but we have to accept that it is a step forward.
I am rather concerned about new clause 5. I spoke briefly to the Minister about it earlier, and I am grateful to him for his time. Having looked into it in rather more detail, I remain concerned. I very rarely disagree with the hon. Member for Belfast, East on these issues. He will remember that in 1998, I was one of the very few Members to join him in the Lobby and he knows exactly where I am coming from on this. However, I really think that that new clause weakens the triple lock, although it does not remove it completely.
provides for the department to be in the charge of a Northern Ireland Minister elected by the Assembly and for that Minister to be supported by a deputy Minister elected by the Assembly
and those elections will require cross-community support. I accept that the new Department cannot be up and running, but it seems very clear indeed that the Department can be set up if, according to the new clause,
it appears to the Secretary of State that there is no reasonable prospect that the Assembly will pass an Act of the kind described in subsection (1)(a) and (b).
may lay before Parliament the draft of an Order in Council.
Subsections (1)(a) and (b) are effectively action to set up the Department. It is very clear to me that the Secretary of State can assume the power to override non-action by the Assembly and then to set up the Department.
I am sorry that I cannot agree with the hon. Member for Montgomeryshire (Lembit Öpik) on this, but I remain very concerned. The Minister said earlier that he would come back to me on what I accept is a very complicated matter. He is always very willing to discuss these matters, so I take it that he will be happy to meet me for a discussion before the Bill reaches the other place. As I say, it is a matter of great concern to me.
Mr. Hanson: As ever, I would be happy to meet the hon. Gentleman to discuss the matter, because we have a reasonable relationship. However, I emphasise the point made by the hon. Member for Belfast, East (Mr. Robinson) that, although the Department can be set up by the Secretary of State, the triple lock is in place to ensure that no devolution can occur until previous legislative commitments of the House are satisfied.
Mr. Robertson: I do not know whether the triple lock is in place with regard to the First and Deputy First Minister. It is in place with regard to the election of the Justice Minister and the deputy Minister, but the triple lock is not otherwise in place. We have talked about triple locks and quadruple locks, but it seems that we have now come down to a single lock. That might be sufficient, but this is getting a bit complicated.
I do not want to take up any more of the Houses time on this issue, which we have aired at length. We cannot come to an agreement on it, but I am grateful to the Minister for his offer to discuss the matter later. He is always accessible and willing to meet to discuss any issues, and I will be happy to take him up on that offer, because I am not satisfied. Indeed, the debate has changed as it has gone along. It has been a long debate, and what we are saying now is not quite what we were saying at the beginning. So I will seek to have that meeting with him before the Bill makes any progress in another place.
New clause 4, tabled by the hon. Member for Foyle (Mark Durkan), relates to intelligence gathering. We are happy to support the Government on the transfer of responsibility for intelligence gathering to MI5. Having said that, I remain a little concerned about the accountability of the security services, as I said to the hon. Member for Foyle in Committee. I have also told him that I remain concerned about the events leading up to Omagh, a matter that I have looked into. I share his concern about that, but I do not think that his new clause is the right way to go, although it raises some important issues. We remain convinced that we should transfer responsibility for intelligence gathering to MI5. I shall not seek to divide the House on new clause 5, but I reserve the right to reconsider the matter later.
Mr. Bone: There has been a tendency for Northern Ireland laws and regulations to be rushed through this House. It therefore strikes me as strange that we sat discussing the Bill for many days in Committee, yet this matter was not presented to us at that stage so that we could discuss it. If the Ministers argument is that this is just a model that might be imposed some time in the future, would not it be better to debate it some time in the future, when we know what the situation in Northern Ireland will be?
Lembit Öpik: The hon. Gentleman took me by surprise as well. Does he agree that, if the Ministers assurances are valid, there is no point in having this provision in the new clause? The only logical reason for having it is to do more than simply set up an impotent shell.
Dr. McCrea: I should like to follow on from the issue that the hon. Member for Wellingborough (Mr. Bone) has drawn to our attention. My hon. Friend the Member for Belfast, East (Mr. Robinson) has also raised the issue, in asking why there was so much haste in bringing the new clause before the House today. The matter was not debated in Committee, but it is nevertheless an important part of the debate this evening. The Minister would do a great service to the House by withdrawing the new clause, to allow the matter to be debated, to be brought before the House again and before the Committee to receive proper scrutiny. There would then be a clear understanding of the matter.
My hon. Friend the Member for Belfast, East has tried to clarify our understanding of what the Minister is saying. The Minister has likewise tried a number of times to explain the issue, although he was very hesitant at the beginning, which perhaps lent weight to the suspicion in some peoples minds that there was something untoward involved. Whenever he was asked about it, the Minister did not give a clear answer and it had to be dragged out of himit was like pulling teeth. He has done us a disservice, although I know that he did not do so intentionally. Nevertheless, he should withdraw the motion and new clause, and allow a proper decision process to take place. It is clear that the measure will not be put into effect immediately, and there is time for proper scrutiny and for him to have regard to due process. That is my request.
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