New Clause
4
Repeal
of conditions for the devolution of
justice
‘Section 16 of the
Northern Ireland (Miscellaneous Provisions) Act 2006 is hereby
repealed.’.—[Mark
Durkan.]
Brought
up, and read the First
time.
Mark
Durkan:
I beg to move, That the clause be read a Second
time.
New clause 4
purports to address a change made by earlier legislation on the
devolution of justice and policing in Northern Ireland. The Northern
Ireland Act 1998 provided that the devolution of justice required
cross-community consent in the Assembly. On current party strengths,
the votes of the Ulster Unionist party, the SDLP and Sinn Fein together
would be sufficient to achieve that consent. That clear provision in
the Northern Ireland Act was amended by the Northern Ireland
(Miscellaneous Provisions) Act 2006, which provided instead that the
devolution of justice could not occur unless the First Minister and
Deputy First Minister moved a motion approved by the higher threshold
of parallel consent. The key difference, therefore, is that on current
party strengths the consent of the Democratic Unionist party is needed.
Also on current party strengths, a DUP Member would hold the office of
First Minister, which would give it another
veto.
Hon. Members
might recall that at the time when the Northern Ireland (Miscellaneous
Provisions) Act was passed, we warned that the DUP might be inclined to
abuse those vetoes, and so it has proved with the stand-off between
Sinn Fein and the DUP. Sinn Fein will make a clear move on policing
only if the DUP agrees a date for the devolution of justice and
policing, but the latter is content to hold the triple-lock veto in its
pocket; so the DUP has essentially given Sinn Fein a veto on
restoration, and Sinn Fein has given the DUP a veto on policing. Which
will blink next? The Prime Minister cannot wink for both of
them.
I believe that
the Secretary of State recognises some of the difficulties that he
created—to be fair to him, he did not start it—when he
legislated for the triple lock in
the 2006 Act. In a paper that he released over the Christmas recess he
indicated that he wants to put a time limit on the triple lock so that
it is not indefinite. At a later stage, we will make our own proposals
to address that issue. However, to revert to the position of allowing
devolution to be triggered by cross-community consent in the Assembly
and not allowing things to be dependent entirely on a DUP veto, which
they have been abusing, would be one step forward. That is the intended
effect of the new clause. It would restore the position provided for by
this House in the 1998
Act.
Sammy
Wilson:
Some of us have listened to the rhetoric of the
SDLP for a very long time about the need for confidence,
cross-community support and inclusiveness—arguments that it has
used time and time again to ensure that Sinn Fein is included in every
decision in Northern Ireland. The explanation given by the hon. Member
for Foyle for the new clause was staggering. He has shown clearly that
inclusiveness as defined by him and his party must include only the
people with whom he agrees or is associated, but certainly not those
opposed to his point of view. That, of course, is what the new clause
is all about.
The
reason why parallel consent was required in the 2006 Act was simple:
the devolution of policing and justice is of such importance that it
can only take place when there is absolute confidence within the
community that the right conditions have been met. That means that the
views of whichever parties happen to represent the majority of
unionists and nationalists cannot be ignored. To talk of inclusiveness,
without recognising that the support of the majority grouping on either
side is required, is plain
daft.
4.30
pm
The hon. Member
for Foyle has hit on the problem that is caused. Sufficient confidence
needs to be generated on both sides of the community. It might well be
that nationalists are happy: indeed the SDLP indicated in the Committee
on the Preparation for Government last summer that it wished to see the
devolution of policing and justice on the day of devolution. It is one
thing to say that nationalists are happy about the devolution of
policing and justice and that it should therefore happen, but that
ignores the confidence that is required on the Unionist side.
Parallel consent was an attempt
to ensure that the devolution of policing and justice would and could
only happen in circumstances in which it could work. That is important.
The devolution of policing and justice in the absence of parallel
consent—a move away from parallel consent—would create
difficulties in a newly formed Assembly, and difficulties for
confidence in devolved policing and justice.
The DUP wishes to see the
devolution of policing and justice in Northern Ireland, just as it
wishes to see the devolution of all other functions. That has been put
on the record of the House on a number of occasions and on the record
of the discussions at Stormont, at which some SDLP Members were
present. The hon. Member for Foyle may have been present at some of the
meetings in which I was involved. However, devolution can only be done
in circumstances where there is confidence. We hope that that will
happen
sooner rather than later. Generating confidence is not solely within the
remit of Unionists generally or the DUP in particular. The lack of
confidence is a result of the attitude of Sinn Fein, which will be one
of the major parties to deal with policing in the Northern Ireland
Assembly. The job of working towards a position that generates
confidence is for Sinn Fein. This form of words on
devolution was used in the comprehensive agreement, in discussions in
the summer at Stormont and by the leader of the DUP in the House. We
wish devolution to happen as soon as is possible, but it cannot happen
unless there is confidence on both sides of the community that it can
work and unless those who will be involved in policing and justice
matters are genuinely supportive of the police. For that reason,
parallel consent is important. It is the one way of ensuring that the
decision is inclusive and cross-community, and that it will work in the
long term.
Paul
Goggins:
My hon. Friend the Member for Foyle has raised a
matter that clearly requires urgent consideration, as we move gradually
towards full support for policing, the rule of law and devolved
government. I warmly welcome the remarks of the hon. Member for East
Antrim, who said this afternoon—not for the first
time—that his party agrees with and wants the devolution of
justice and policing. Of course, as I set out in the St. Andrews
agreement, the Government believe that if we have full support for the
rule of law, policing and the courts, and if we get the election and
devolved government, we can devolve policing and justice by May 2008.
That is possible so long as all parties work in good faith towards that
end.
My hon. Friend
invites the Committee to overturn Parliament’s decision on the
provisions for the devolution of policing and justice. Of course I
shall argue against that and will encourage the Committee not to accept
his arguments. It has always been the Government’s position that
policing and justice can be devolved only on a sustainable basis with
broad, cross-community support. Consistent with that position, it is
our view that the support of a majority of both sectors of the
community in Northern Ireland is essential if the devolution of
policing and justice is to succeed. That is why section 16 of the
Northern Ireland (Miscellaneous Provisions) Act 2006 makes it clear
that the Secretary of State cannot introduce an order to devolve
policing and justice unless both the following conditions are met: the
motion asking that he do so is tabled by the First Minister and the
Deputy First Minister acting jointly and that motion receives support
in the Assembly from a majority of designated nationalists and a
majority of designated unionists—the so-called 50:50:50
method.
The hon.
Member for East Antrim was right. Because the issue is
controversial—it goes to the heart of confidence in policing and
sustainable democratic, peaceful conditions in Northern
Ireland—it is right that a higher threshold be set in relation
to it than is, perhaps, the case for the devolution of other matters.
We make no apology for that. It is clear; it is in the legislation; and
most importantly, it can be done if the parties act in good faith and
work together to ensure that it can happen.
Let me make one final point,
which might help the Committee. The transitional Assembly’s
programme for government committee sub-group on policing and justice,
which I had the pleasure of engaging with a few days ago, is
considering various departmental models to support policing and justice
once they have been devolved. As part of that, it is considering a
paper that was put to it in December by my right hon.
Friendthe Secretary of State, which sets out a further
departmental model that might be capable of commanding support across
the parties. The sub-group has not yet come forward with any
conclusions. It might do so in the near future, and if it does,
Ministers will need to give urgent and careful consideration to what
action the Government may need to take in light of those findings,
conclusions and recommendations. I draw that to the Committee’s
attention as a matter of courtesy, because it might be necessary to
return to those issues on Report and to debate matters that have not
arisen in Committee.
Mark
Durkan:
The hon. Member for East Antrim suggested that the
SDLP is somehow parting from the principle of inclusiveness—it
is not—or from the principle of cross-community support. It is
not. We seek to return to the provisions of the 1998 Act, which
legislated for the Good Friday agreement and are based on
cross-community support. That is the basis on which we say that
devolution should happen. That is what the 1998 Act provided for and
the Patten report envisaged, and it is what we are trying to achieve.
Instead, however, he is trying to say that the only test of
cross-community support should be the parallel consent or the 50:50:50
method that the Minister mentioned.
Let us be clear: the hon.
Member for East Antrim and his party did not like parallel consent when
it came to electing the First and Deputy First Ministers. They did not
want a test of cross-community support then. No, there had to be no
vote at all—just one party nominating, with exclusive rights of
nomination, and the other party doing the same. Under the 1998 Act, the
First and Deputy First Ministers had to be proposed and accepted by
parallel consent, and that is the only instance under the agreement in
which it has happened. One other narrow provision requires parallel
consent, but it has thankfully never had to be used.
The DUP did away with parallel
consent to elect the First and Deputy First Ministers, and Sinn Fein
went along with the DUP. In everything else that is subject and open to
cross-community support, a 60 per cent. Assembly majority would
suffice, provided that at least 40 per cent. of nationalists and
Unionists were part of that majority. The DUP and Sinn Fein have moved
away from the wider and more flexible yardstick of cross-community
support to parallel consent and 50:50:50, because that gives each party
a veto, which they can abuse tactically to hold the rest of us hostage
and to hold Government to ransom for all sorts of concessions, some of
which have nothing to do with the issue that they are vetoing. The DUP
might be comfortable using the parallel consent veto, but it should be
remembered that it is going into the hands of others as well. We are
not departing from cross-community support; we are trying to return to
it.
I welcome the remarks of the
hon. Member for East Antrim on his willingness to see the devolution of
justice. He strikes a different tone from many of his colleagues who
said, particularly during the passage of the Northern Ireland
(Miscellaneous Provisions) Act 2006, that they did not envisage that
the devolution of justice and policing would happen in their lifetime,
competing to say how many lifetimes it would take. I made the
observation elsewhere that we have known for many years that there is a
strong Free Presbyterian presence in the DUP, but it was news to us
that there were so many Buddhists. It was going to take so many
lifetimes that they would have to come back to stop the devolution of
justice and policing.
I welcome the fact that the
hon. Gentleman takes a different tone. There is a bit more realism
about the devolution of justice and policing, and the Secretary of
State has helped by pointing out that considerable devolution has
already taken place. The establishment of the PSNI has devolved to the
Policing Board and the Chief Constable, separately or between them,
powers that used to lie with the NIO and the Secretary of
State.
We are caught
in a debate now because Sinn Fein has exaggerated and distorted
devolution issues for its own purposes, and it has served the DUP to
counter-exaggerate them, which is why we heard about so many lifetimes.
I am glad to see a bit more realism and perspective. That being so, why
do we need to retain the vetoes in this way?
The Minister has told us that
Parliament cannot be asked to reverse what it provided for in the
Northern Ireland (Miscellaneous Provisions) Act 2006. In the same
remarks, he told us that a sub-committee ofthe programme for
government committee in the transitional Assembly is considering the
Secretary of State’s paper of late December, but that paper says
that, if a vote does not take place under the 2006 Act to devolve and
appoint a Minister by May 2008, the Government will take all necessary
steps to make that happen, including appointing a Minister for justice
to work in a devolved capacity. That completely contradicts what he
said—that it could never be done and that cross-community
support was absolutely necessary. Contradictions and limitations are
emerging in the Government’s
position.
4.45
pm
Paul
Goggins:
To clarify my remarks, I was simply pointing out
that my hon. Friend was inviting the Committee to overturn the previous
settled view of Parliament. Obviously, that is possible, but I was
making it clear that he is encouraging us to subvert a decision
previously taken by Parliament. That is just a matter of
fact.
Mark
Durkan:
When we look at the Minister’s remarks we
will see that he said a little more than that in respect of his
emphasis when echoing the hon. Member for East Antrim on the
prerequisite of having cross-community support as measured by parallel
consent before anything could happen. The Secretary of State’s
paper shows that he now recognises that a difficulty has been caused by
creating an open-ended veto in the form of the triple lock.
It is hard to see how anyone
will rely on the certainty of a date such as May 2008 if one party can
postpone it indefinitely just by using the existing legislative
provision; it needs to be qualified, checked or overridden in some
other way. It seems clear from the paper that that is what the
Secretary of State is minded to do. It would not surprise me if, later
on in consideration of either the Bill or subsequent legislation, we
found ourselves doing precisely that. It would not be the first time
that the Government had produced a legislative multi-point turn on the
same issue, taking first one direction and then another. That is what
will happen.
I am not
asking members of the Committee to subvert the Northern Ireland
(Miscellaneous Provisions) Act 2006; I am asking them to revert to the
sensible provisions, under the Good Friday agreement and the 1998 Act,
for cross-community support to trigger the devolution of justice and
policing. Those provisions were agreed on a multi-party basis, not
because they suited the demands of one party or another.
Question put, That the
clause be read a Second
time:—
The
Committee divided: Ayes 1, Noes
15.
Division
No.
14
]
Foster,
Mr. Michael
(Worcester)
Question
accordingly negatived.
Question proposed, That
the Chairman do report the Bill to the
House.
Paul
Goggins:
On a point of order, Sir Nicholas. I am pleased
to rise to express my thanks to all those who have been involved in our
deliberations. Three things have been apparent to me throughout. First,
we have had ample time to carry out our discussions and to deal with
challenging questions, as is evident from the stage that we have
reached. I am sure that we all have welcomed having enough time and not
having to deal with other pressures that force decisions in an untimely
way.
Secondly, all
members of the Committee have shown good humour and courtesy in our
discussion of difficult and important issues. It is always good when
the House and its Members operate in that
way.
Thirdly, I note
the sheer hard work that many hon. Members on both sides of the
Committee undertook to prepare for these sittings and for making their
arguments, and I include my hon. Friends and others who may not always
have participated in our debates, but who were always there when it
counted.
I thank my
hon. Friend the Under-Secretary of State for Constitutional Affairs,
who led on several issues. I am grateful for that, and am also grateful
to the Whip and his colleagues, who helped us to stay in
tune.
I say to you,
Sir Nicholas, and to Mrs. Anderson that we very much
appreciate the way that you have chaired our proceedings. Without
doubt, you helped to keep the matter in hand clear, and you sometimes
reminded us that we were making an intervention, not a
speech.
I thank among
the hard workers all my officials,who worked diligently in
Committee, but also in preparation for it. Much work lies ahead on some
promises that I made to reconsider the wording of various parts of the
Bill. The Committee is a point of scrutiny. It is important that we
bear in mind all the arguments that have been made, and we will do
that.
Finally, I thank
the Clerk and Hansard for their untiring and unstinting efforts
to keep us well advised and to record our proceedings. Again, thanks to
you, Sir Nicholas, for presiding over the
Committee.
Mr.
Robertson:
Further to that point of order,Sir
Nicholas. I join the Minister in thanking you and Mrs.
Anderson for giving up so much time to chair the Committee, and for the
competent and occasionally humorous way in which you did
it.
I thank my hon.
Friends, who have been with me most of the time. As the Minister said,
my hon. Friend the Member for North-East Milton Keynes, who,
unfortunately, is not with us today, and my hon. Friends the Members
for Peterborough and for Wellingborough made several telling
interventions.
I thank
the Minister for his approach to the Bill. He said at the outset that
he would listen and think about the issues. He has quite a bit of work
to do before the Bill becomes law, as he kindly said that he would
reconsider several
matters.
On a wider
basis, I thank the Northern Ireland Office for its approach to
legislation. It offers briefings to Opposition Members and facilities
when we travel to the Province. That is very much appreciated. Such
actions help to avoid unnecessary party political squabbles and enhance
the quality of the debates. I thank the Minister’s officials,
the Clerk and Hansard for their help as
well.
I wish
the Bill well. We highlighted several issues and concerns. They may
sometimes appear to be small, but they can have a disproportionately
bad effect, so we have been right to raise them. I have very much
enjoyed the Committee, and I look forward to the next stage of
consideration.
Lembit
Öpik:
Further to that point of order,Sir
Nicholas. I congratulate the Minister, who has been annoyingly
misguided from time to time—that is, when he did not take on my
point of view—but nevertheless proved himself a lovely fellow.
He has a beguiling manner, which will no doubt put him in good stead as
we approach other
deadlines.
In
parenthesis, may I observe to Northern Ireland colleagues that it is
obviously possible to get all the work done well ahead of a deadline
and not force the Government to postpone things yet again? There has
been a remarkable degree of joint working between parties in the past
four sittings.
I make a serious point to the
Minister: he can see that when the Government give space for proper
debate and the opportunity to amend legislation, things work quite
well. That is a further reason to learn from the positive example of
the Committee the lesson that if statutory instruments were also
amendable, he would probably receive a positive response. The
Government have nothing to fear by introducing the ability to amend in
that context.
The
hon. Member for Tewkesbury said that there is unfinished business,
which we shall return to on Report, as right hon. and hon. Members
know. I therefore finish by thanking you, Sir Nicholas, for your
irrepressible charm as our Chairman. You make democracy a delight, and
it has been a real pleasure to serve under you these past four
sittings.
Mark
Durkan:
Further to that point of order,Sir
Nicholas. I pick up where the hon. Gentleman left off, by thanking
you—not only for your charm, but for your courtesy and special
consideration of my position. Unlike the other hon. Members who have
spoken, I find it hard to thank everybody for being here for the whole
time, when I was not. However, I hope that that is fully understood and
that, as we finish today, hon. Members appreciate that absence all the
more.
I thank all the
Committee staff who have supported us in our consideration. I thank the
Minister for the degree to which he listened and responded. He perhaps
did not heed or accept, but at least he listened and responded in a
clear and respectful
manner.
The hon.
Member for Tewkesbury touched on the fact that there are some difficult
issues in the Bill, and the Minister said that he would consider some
matters further. Other matters will have to be considered further,
although that will be based not only on the issues that have been aired
in Committee. However, that is for a later stage, so I thank you
again,Sir Nicholas, and your co-Chair, Mrs.
Anderson, under whom I did not serve due to other
circumstances.
Lady
Hermon:
Further to that point of order,Sir
Nicholas. I regard you as being in a league of your own when it comes
to chairing Committees. I have had the great fortune of sitting on many
Committees that you have chaired, many of which were controversial and
sensitive, given the suffering that people have gone through in
Northern Ireland. You are always exceedingly gracious, good tempered
and patient, in allowing lengthy interventions, yet making all members
of the Committee, including the Minister, feel that they have had ample
time to air their views. I pay you the warmest
tribute.
I am sure
that Mrs. Anderson was looking forward to seeing all the
Committee members back next week, so she will be enormously
disappointed that we shall not be sitting then. She was entirely
charming in chairing the Committee this morning, so I extend thanks to
her, too.
I also
thank—this is not a hierarchy—the Doorkeepers, who had to
open, close and lock the door, aided and abetted by the hon. Member for
Foyle, who made use of his time when he was here. I
also
thank the Hansard staff, who kindly returned by post this morning
my only surviving copy of the Belfast agreement, which is a rare
collector’s
item.
Sammy
Wilson:
Soon to be
extinct.
Lady
Hermon:
It is never to be extinct. That brings me to the
point in play—the teasing of the hon. Gentleman, who was very
tolerant of that teasing, which came not only from me, but from hon.
Members throughout the
Committee.
I also
thank the officials. I have been critical of the drafting, but in a
previous incarnation I taught in the law faculty at Queen’s
university and did some proof-reading. It is the main aim of all
members of the Committee and all officials to get it right—for
Her Majesty’s forces, the judges, the judiciary, the ombudsmen
and Police Service of Northern Ireland officers, who have to apply the
law that we introduce in the House.
5
pm
Last but
certainly not least, I thank the Minister. As always, it has been a
delight to tease, cajole and persuade him, and to try to entice him
into changing his mind on various matters. It is exceedingly difficult
to fall out with him. He is an exceedingly good Minister and it has
been delightful to see him in Committee. In fact, this has been one of
the nicest Committees of which I have had the good fortune to be a
member.
The
Under-Secretary of State for Constitutional Affairs responded at a very
opportune time this afternoon on the matter of bail conditions—I
have to say that until then I had never understood them. The demise of
resident magistrates could not possibly have been handled any more
elegantly and fairly. So, goodbye to the resident magistrates and thank
you to the Ministers. The Committee has been wonderful, and I am rather
sorry that we are not continuing next week. I thank all Members and the
Chairman.
Sammy
Wilson:
Further to that point of order,Sir
Nicholas. I am going to be dead brief, because I want to catch the
plane home this evening, and other Members want to get away too. My
absent colleague felt that he could leave things in my hands, though I
do not know whether his confidence was well placed. On his behalf and
my own, I thank all the staff and everyone who has served the Committee
over the past couple of days.
It is easier to thank a Minister
when the Bill is one with which one mostly agrees and there is not as
much dispute as on previous occasions. Nevertheless, I thank the
Minister for how he has handled the queries and questions that have
been raised. I still look forward to finding out the answer to my
question about the police stopping an airborne aircraft—I hope
he gets me a reply to that fairly
quickly.
Like the hon.
Member for North Down, I have now served on a number of Committees on
which you have been the Chairman, Sir Nicholas, and I have always
looked forward to your good humour and the way that you help those of
us who are still parliamentary apprentices. We still sometimes fall
foul of the rules, but I have always found you very tolerant, and I
thank you for
that.
The
Chairman:
I thank Committee members for those generous
comments about me and my co-Chairman, Janet Anderson. I congratulate
the ministerial team on the constructive and sensitive way that they
dealt with important amendments to what is an important Bill for the
people of Northern Ireland. I thank those who have ensured that our
deliberations have been effectively and properly carried out—the
police, the Doorkeepers, Hansard and, in particular, the Clerk
of this Public Bill Committee. It was always useful to have him on my
left to give me advice and help when necessary. This has been a good
Committee.
I make a
plea to the Government Whip, the governing party’s business
manager. Although we have completed our deliberations well within the
terms of the programme motion, business managers should not be led into
reducing the time available for debate on important public Bills. We
have finished within the available time because the Committee as a
whole tackled the Bill constructively and sensibly. Ministers have
listened and there has been no procrastination, delay or
repetition.
I want to
comment in particular on the performance of the hon. Member for Foyle,
to whom I always love to listen when he waxes lyrical—as he
frequently does. I am also grateful for the humour shown by everyone.
The Committee, even if I say it from the Chair, has been an example
that I hope will be followed often. I congratulate all Committee
members on the role that they have
played.
Question
put and agreed
to.
Bill to be
reported, without
amendment.
Committee
rose at four minutes past Five
o’clock.
| 
