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4 Mar 2009 : Column 895

I am confident that our amendments, if approved, would strengthen the devolution of justice, making the DPP answerable to a key figure who is accountable in turn to the Assembly. It would also give the DPP a shield to protect him on occasions when he has to deal with very contentious prosecutions. We have tabled a number of other amendments, including one that would set a time limit of six months on appointing a Justice Minister. That is in no way intended to undermine devolution, but we think that, given the security situation in Northern Ireland, it is not acceptable for criminal justice and policing to continue for an indefinite period without a Minister responsible to a democratic body.

Andrew Mackinlay (Thurrock) (Lab): I do not know whether the hon. Gentleman noticed, but in the Secretary of State’s speech, he relied on—without naming them—other common law jurisdictions, which I recall him saying would not be a good formula for Northern Ireland. He did not elaborate. As an aside, I think that that shows that if we had a proper Committee stage, we could probe much further. Perhaps the hon. Gentleman will join me in asking the Secretary of State to tell us when he concludes the debate what jurisdictions the Government consulted and what those jurisdictions were asked. It would be interesting to know. I follow much of what the hon. Gentleman says; he is making a powerful point.

Mr. Paterson: I am sure that the Secretary of State will have noted those comments and will reply later. We think that there should be a limit to the process, so that we have a final full-stop. It would not be sensible to have a Department without a Minister for an indefinite period.

I am aware that time is short and many other Members wish to speak, so let me summarise our position. We support the devolution of criminal justice and policing, but it is for the Assembly to decide when all parts of the community consider the time to be right. Given the dangerous security situation that is also exacerbating the financial pressures of devolving criminal justice and policing, the Assembly should think long and hard before taking this step. We believe that, should it decide to do so, this model has many merits. It would, however, be much improved if our amendment on the accountability of the DPP were agreed. On that basis, we will support Second Reading this evening.

3.15 pm

Mark Durkan (Foyle) (SDLP): Yet again, we have a Second Reading debate on a Bill that addresses the devolution of justice and policing in Northern Ireland. It comes, as my hon. Friend the Member for South Down (Mr. McGrady) noted earlier, on top of a torrent of legislation on the same subject—seven previous Acts have touched to some degree on this issue. The reason for having so much legislation is that there has been so much misrepresentation about what the devolution of justice actually means. We have also had a lot of pretence about its imminence in the past, and perhaps there will be more pretence about it now.

Let us reflect on how this issue has developed over recent years. Sinn Fein used it as an excuse to put off the evil day, as they saw it, when it would have to sign up to policing. It said that it had to have devolution of
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justice and policing first, so the terms, principles and constructs of the devolution of justice and policing became the be-all and end-all before Sinn Fein could move forward on policing. It was essential to Sinn Fein, because it could say that when it went on the Policing Board, it would have control over the police. The Government—indeed the two Governments—started playing that line and brought us through a chicane of different legislative models and pieces of legislation in order to create landmarks, which were optical illusions to show that significant progress was being made on the road to the devolution of justice and policing. Those optics could then be served up to supporters and the broader public.

All that created fear and unease within the Unionist community, so parties such as the Democratic Unionist party worked to hold up the devolution of justice and policing with dire warnings about paramilitary control or people with paramilitary records gaining control of the police and the prosecution service, thus creating a lot of unnecessary and undue fears about what the devolution of justice and policing would entail.

What we need to remember about all this—in fairness, the Secretary of State has made this point in the past, as did his predecessor—is that a significant number of the powers previously exercised by Secretaries of State and the Northern Ireland Office had already been devolved both to the Policing Board and the Chief Constable, and rightly so. Broadly, that worked well and confounded the low expectations of many people.

We also need to remember that when the devolution of policing and justice comes, whoever or whatever the relevant Minister may be, they will not be in a position to lift the phone and tell the Chief Constable, “Set my people free; go after those people.” Ministers will not be able to interfere in prosecutions, judicial considerations or anything else of that nature. Many of the fears have thus been hyped up—apprehensions on the one hand and perhaps false aspirations and ambitions on the other. Any such falsehoods needed to be laid to rest.

With the devolution of justice and policing, there will be no going back to the political control of the old Ministry of Home Affairs in Northern Ireland, and there will be no going forward to paramilitary control. Why? Because the protections in the Patten report and the criminal justice review—two reviews set up under the Good Friday agreement—are there to stop it. Sinn Fein knows that, which is why it ended up having to sign up to policing, despite the fact that it had neither the devolution of justice and policing nor even a date for it to happen. At the time, it did not even have the agreement that it now says that it has with the DUP. Its position was indulged for far too long, with all the phoney legislation and other moves of Governments emerging from it. That is why we are back here dealing with the issue yet again today.

The DUP, of course, knows all about this, too. That is why the current DUP leader, the right hon. Member for Belfast, East (Mr. Robinson) told The Irish Times four and a half years ago that the devolution of justice was “no big move” for Unionists, yet we get it played again and again as though it were the biggest possible move for Unionists. Again, bad management of the process by the Government has allowed the Democratic Unionist party to move from one tactic to another.

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The fact is that devolution of justice and policing will be a threat to nobody and an opportunity for everyone. It will consummate political change and policing change. It will ensure that we complete the suite of devolution in having policing and justice powers alongside all others. It will mean that MLAs will be worthy of the title Members of the Legislative Assembly, because they will be able to legislate on the criminal law alongside other matters and ensure that programmes, policies and budgets across all the services that policing has to deal with, along with other devolved services, can better mesh and engage.

Christopher Fraser: Does the hon. Gentleman accept the point on additional costs, which I made earlier to the Secretary of State, and is he as concerned as me that the burden will be put on the Assembly? As the Secretary of State has pointed out, it may have to find its own means to deal with the issue.

Mark Durkan: Yes, we have concerns about that. The Assembly, Members of the Assembly and the Executive face budgetary pressures and will want to show good due diligence for any other responsibilities that they get, so obviously we want to pay attention to the budget. We want to get devolution soon, but we also want to get it right. We want to get it right by budget, right by policing and right by the needs of the justice system. We also want to get it right—the Social Democratic and Labour party makes no apology for this—by the Good Friday agreement and the principle of democratic inclusion, which was enshrined and built into that agreement. We make no apology for trying to get it right in all those areas, but we should not turn this debate into a lobbying exercise on budgetary matters, which need to be pressed elsewhere.

Mr. Donaldson: Is the hon. Gentleman’s reference to the Good Friday agreement a reference to the “ugly scaffolding” that he has talked about on previous occasions and the need to dismantle it?

Mark Durkan: I make no apologies. I used the phrase “ugly scaffolding”, as the right hon. Gentleman may remember from when he and I were negotiating the Good Friday agreement. Indeed, on many of the institutional aspects of the agreement, if the truth be told, he had more of a hand in negotiating some of the detail than the former Member for Upper Bann, Lord Trimble. I proudly recall many of the conversations and exchanges that we had.

We said that we wanted to ensure that some of the provisions of the agreement would be biodegradable so that, as we created a new political environment, some of the artificial protections could be dispensed with by agreement. That is what we look forward to, but we see it happening in the context of a strong and robust Bill of Rights, which the right hon. Gentleman and his party completely oppose. If there is no strong, robust, effective and articulate Bill of Rights providing protections, obviously people will want to hang on to all sorts of protections that are built into the decision-making process.

Mr. John Gummer (Suffolk, Coastal) (Con): Will the Assembly not have to take into account the issue of cost when it considers whether it wishes to ask for these powers? Is it in fact not a matter that should be taken
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into account by this House now? We should be taking into account the nature of what is put before us. As one who has listened carefully to this debate and previous debates, it seems to me that what is before us is a perfectly reasonable answer to the problem.

Mark Durkan: First, I take the right hon. Gentleman’s point. This is not in itself a budgetary debate, and it is important not to turn the debate on the Bill into a budgetary debate. Secondly, what is before us does not provide an answer to the vexed question of how to provide for the devolution of justice and policing now and how to ensure that we have an enduring political arrangement.

In opening the debate, the Secretary of State talked about there being an enduring political settlement, but the Bill provides for a justice Department that will not be enduring. It provides for a transitional Department that will exist until 1 May 2012 and which will then dissolve automatically unless the Assembly has agreed before that to make some other arrangement. Hon. Members should consider our experience over the past number of years and the fact that the House—despite all the promises and pretensions of various Secretaries of State as they have introduced and bum-rushed different legislation through this place, saying, “It is absolutely needed and this is the impetus we need to take us over the hill, round the corner and into nirvana,”—has constantly come back to yet more Bills.

When we were considering one of the previous bits of legislation, I remember telling the right hon. Member for Neath (Mr. Hain) that he had presented more vacuous models than Hugh Hefner. We still have no end to the models that will have to be presented here.

Madam Deputy Speaker (Sylvia Heal): Order. Perhaps I might encourage all Members to come back to debating the Bill under discussion.

Mark Durkan: I am very much on the subject of the debate, Madam Deputy Speaker, because the Bill provides for a ninth model. Indeed, the Secretary of State told us that the Bill with neither impose devolution—nor can it, because the triple lock is still there—nor make this the only model. He said that it adds only one more model to the menu. Of course, people are free to come up with other models if they want to. That is the compelling urgency that we have for this legislation and that is what the right hon. Member for Suffolk, Coastal (Mr. Gummer) says convinces him that it is a good answer to the problem that we have. It is not.

We should consider the arrangement that the Bill provides for the appointment of a Minister. The hon. Member for Thurrock (Andrew Mackinlay) talked about the Alliance party being the elephant in the room—not in the room, hovering above the room or whatever—and it is clearly no secret that Sinn Fein and the DUP have agreed that, for the purposes of the first Minister with responsibility for justice and policing in the devolved context, the d’Hondt provisions—the provisions of inclusion in the Good Friday agreement—are to be bypassed, abandoned and subverted.

The agreement deliberately made those provisions, and when we were negotiating it was agreed—I include myself and the right hon. Member for Lagan Valley (Mr. Donaldson) here—that we should not have a situation
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in which parties could vet and veto each other’s ministerial appointments as that would be a recipe for instability and game playing. Yet that is exactly what has been agreed between Sinn Fein and the DUP, and it is exactly what this legislative model provides for.

I fully understand that the DUP does not want an additional nationalist Minister, which would happen if this were to be done through an additional Minister being appointed under d’Hondt. The DUP does not want a second SDLP Minister, because we might be better up to what it is at in government and elsewhere than Sinn Fein apparently is. Sinn Fein does not want a second SDLP Minister either, but what we have here is legislation that allows for gerrymandering in Northern Ireland 2009.

The old Stormont regime began in the 1920s by removing the guarantee that was laid down for proportional representation in local government. Then it moved on to remove the guarantee for proportional representation laid down for the Stormont Parliament. This Stormont regime is beginning, with the connivance of the Government, by removing the provisions for proportional representation that the Good Friday agreement and the Northern Ireland Act 1998 laid down for the Executive in Northern Ireland and for ministerial appointments. That is why this is a serious matter. It cannot be a matter of indifference to us, and not just because the SDLP would directly lose out. We would defend this principle if it affected any other party as well, and our record shows that.

Indeed, I point out to Members the fact that whenever we were debating the Justice and Security (Northern Ireland) Act 2007—when the right hon. Member for Neath, as Secretary of State, produced the eighth model, which said that there could be a Minister and a Deputy Minister elected by the Assembly on a cross-community vote, but specified that those Ministers could come only from the two largest designations—we protested at that exclusion of the Alliance party. We said, “If you are going to depart from the agreement and remove the principle of inclusion, you should not introduce a form of exclusion that has clearly militated against a particular party.” Our record on that is clean and it is clear. We want all parties to be treated fairly according to their democratic entitlements, but that is not what the Bill does.

I do not want to dwell on the issue of who would be the Minister and how the Minister would be appointed, because there are more serious issues in the Bill. Whoever was appointed according to the model in the Bill—and in all likelihood, given the current thinking of the DUP and Sinn Fein, it will not be an SDLP Minister—may stay in office, but can be put out of office at any time. That does not apply to the other Ministers, who can be put out of office only in accordance with provisions in the agreement and terms for exclusion. I think it quite unfair that an Alliance Minister might be put out of office just for being annoying, although some people might consider that a good enough reason. The chances are, however, that whoever is appointed will be the Minister until the next Assembly election, if devolution comes before it.

The Bill provides that, after the Assembly election scheduled for May 2011, all the other Ministers will have to be appointed by means of the d’Hondt system, and if that has not happened within seven days, there
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will be an election. However, the Bill also states that we do not have to appoint or elect a Minister of Justice. Our Department of Justice can continue indefinitely without a Minister. If we consider the Department of Justice to be so important and sensitive that we must get it absolutely right, can we really be saying that we want to pass legislation whereby we are prepared to leave the ministerial post vacant after an Assembly election—that the Department can continue without a Minister? And for how long are we saying that that can continue?

Mr. Laurence Robertson (Tewkesbury) (Con): The hon. Gentleman will have observed that our amendments address not only what will happen after an Assembly election, but what would happen if policing and justice were devolved later this year. We feel that in that event a Minister should be in place almost immediately, or at least as soon as possible.

Mark Durkan: I am aware of the amendments tabled by the hon. Gentleman and his colleagues, but I think that our amendments provide better ways of dealing with these issues, and that they are more consistent and compatible with the principles and provisions of the agreement and the 1998 Act.

Although I appreciate the opportunity that we were given to discuss aspects of the Bill with officials from the Northern Ireland Office, when we asked what would happen about the Justice Minister and how long the situation could continue, we were told, “Obviously there will come a point at which Westminster will have to intervene.” Will it? Has Sinn Fein agreed to that? It has clearly agreed to much of the Bill’s content, but has it agreed that if no Justice Minister is appointed for a significant period after the 2011 election, Westminster will have to intervene at some stage? Is this permanent devolution, or is it devolution that involves direct rule, or bits of direct rule, coming back here and there? It is unusual, and it is curious.

Why might we not have an elected Minister of Justice after the 2011 Assembly election? We might not have one because the Bill contains a sunset clause identifying 1 May 2012 as the point at which the Department of Justice will be devolved if no other provisions are made. The year will build up to that deadline and the potential stand-off between Sinn Fein and the DUP, which is what they intend. There was a stand-off between them over the devolution of justice and policing last year, with the Executive failing to meet for five months. Now the issue will be cranked up again in advance of the May 2011 election.

Each party will seek a mandate so that it can stand up to the other. Sinn Fein will want to push the line in asserting its rights in terms of the Ministry of Justice and policing, while the DUP will seek a mandate to hold the line against Sinn Fein’s assertions. Immediately after the election, the negotiations will begin. We will see a stand-off that could easily be reflected in a failure to agree to the election of a Justice Minister. The game of chicken will continue. According to the Bill, in 2011 we shall have a Department without a Minister, perhaps for a significant length of time.

Dr. McCrea: Is it not also true that now is the time for the SDLP to stand up against Sinn Fein, give leadership to the people and gain their confidence?

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