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4 Mar 2009 : Column 901

Mark Durkan: We have always stood up against Sinn Fein. It is not us who are conniving and colloguing with Sinn Fein. It is not us who are in a snug pact with Sinn Fein, rushing all sorts of potentially controversial legislation through the Assembly under the accelerated passage procedure.

I took with a pinch of salt what I heard from some Members today about the need to ensure that legislation was always given due scrutiny, particularly when it was sensitive and controversial. I only hope that when it comes to the legislation on the devolution of justice and policing in the Assembly, it is not subject to the accelerated passage procedure as well. Sinn Fein, along with the DUP, has a fondness for using that procedure in the Assembly. Some of the rest of us try to stand up to Sinn Fein in those circumstances, but of course the DUP stands with it in those circumstances.

I have referred to the difficulties there could be in 2011, when we could have a Department without a Minister for a significant period of time. I now want to move on to 2012.

Sammy Wilson (East Antrim): Before the hon. Gentleman does so, may I ask about the picture he has painted of what he considers to be the likely stand-off over the Minister for policing and justice? Does he not accept that if that kind of atmosphere prevails in policing and justice, it is also likely to prevail in the appointment of a First and Deputy First Minister, because there is the same potential for that? Therefore, if the structure, which he endorsed, for the appointment of the First and Deputy First Minister is robust enough, why does he not consider the arrangement for the appointment of a Minister for policing and justice to be similarly robust?

Mark Durkan: Simply because experience, including of how parties have dealt with this issue, shows us that it will not be. If this is about creating certainty, stability and confidence in the devolution of justice and policing, why are we going for a model that is so injected and pre-programmed with uncertainty that we have provisions for no Minister in 2011 and for dissolution in 2012? We have been told in both this debate and the earlier one about the significance of the 18 November agreement between the First Minister and the Deputy First Minister. That letter told us there was no fall-back, and that there was a sunset clause which was agreed only until May 2012. Do we have an enduring settlement and arrangement if we have a provision that is purely transitional and leads to the potential dissolution—that is what we are legislating for—on 1 May 2012 with no fall-back? We could have the fall-down of a Department, but we have no political fall-back. Therefore, in 2011 we could have a Department with no Minister and, because the schedule does not say that when the Department dissolves the Minister ceases to hold office, in 2012 we will have a Minister but perhaps no Department. There will be a zombie Minister, nominally the Minister of justice; there will be a Minister in office, but with no office and no private office staff, or anything else. That is the nonsense that we are legislating for in this Bill. So there is not just the badness of what has been done in moving away from the agreement and inclusion, but the madness of legislating for failure in that regard.

The First Minister and Deputy First Minister letter said there was no fall-back, but there is, of course, potentially a fall-back. We are told that this legislation is to discharge and reflect faithfully the agreement
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between the First Minister and the Deputy First Minister and all that was carefully negotiated between Sinn Fein and the DUP, but a fall-back is provided for. Paragraph 5(2)(b) of schedule 1 provides for the Secretary of State to introduce an Order in Council that would impose our old friend model 8, which the right hon. Member for Neath legislated through this House when he was Secretary of State. That model says there will be a justice Minister and a deputy justice Minister from the two largest political parties. I would be interested to hear from the Secretary of State or the Minister, either in an intervention or in a winding-up speech, whether they intend that provision as a fall-back, and if so, have they told Sinn Fein? Have Sinn Fein and the DUP agreed that there is such a fall-back? If Sinn Fein has agreed that that is a fall-back, the agreement of 18 November is already contradicted and confounded, and if it has not agreed that, it may well be upset and annoyed that this has been smuggled past it. That is one reason why we need more time to consider these matters in this House: some of us can spot things that Sinn Fein seems unable to spot, like the meaning of the words “at all times”.

Mr. Gregory Campbell (East Londonderry) (DUP): As for whether the option would be the Justice Ministry or any other option, does the hon. Gentleman accept that, in the event of negotiations and discussions running into the sand, the ultimate fall-back position would be this House anyway?

Mark Durkan: That is not what I want to achieve; I want to achieve devolution that happens once and for all and for good, particularly if we are, in the Secretary of State’s words, trying to talk about enduring arrangements. That is what we want to get to. I make no secret of the fact—this is shown in my party’s amendments—that what we want for a Minister of justice and policing, as with all other Ministers, is appointment by inclusion, by the d’Hondt system. If people realise just how limited the rules and powers of this Minister are going to be, they may not be as vexed. The reality is that the Minister’s main job will be getting the budget rather than setting it, because that is the job of the Chief Constable and the Policing Board, and taking the lead in preparing and providing legislation as well.

The point about 2012 is that we will have this stalemate of a Department dissolved. What will happen to its functions? Will they, as the hon. Member for East Londonderry (Mr. Campbell) suggests, then come to this House? I know that some hon. Members have tabled amendments saying that in the event of no Minister being appointed in 2011 or the Department dissolving in 2012, things revert to some sort of direct rule, some sort of appointment by the Prime Minister, or they go to the Secretary of State and so on. I do not know whether that is what he is suggesting when he says that they will revert to this House. That may be his understanding, but I do not know whether it is part of an understanding that his party has shared with Sinn Fein and that the leader of his party has shared with the Deputy First Minister—perhaps that will be elaborated on later in the debate.

The potential fall-back provided for in paragraph 5(2)(b) of schedule 1 is not much of a fall-back, because it does not guarantee that a Department and a Minister will be
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appointed. The fall-back brings us only to a situation in which there can be a Minister and a Deputy Minister elected by cross-community votes, and so we are back again to the need for agreement and the potential veto over who will be the Justice and Policing Minister—it is the triple lock yet again. No matter what way we look at all these things and the fall-backs, it is again a case of, “There’s a hole in my bucket, dear Liza.” We keep coming back to the same point—the veto that will be there. Even the fall-back of 2012 turns out to be an optical illusion too, because we are confronted with the DUP veto at all times in that situation.

That is why we need to pay attention to the various amendments that are proposed on these issues. Other issues are obviously provided for in this Bill, but on judicial appointments we regret the removal of the role in the procedure for the First Minister and the Deputy First Minister—not that they were going to have a significant say, because their only power was to be to ask, on occasion, the Judicial Appointments Commission to think again about a recommendation. That was all; they could ask it to have a second thought on a recommendation, but they were going to have no other powers of interference or influence on judicial appointments. This was provided for in the criminal justice review, and we regret anything that takes us away from that review.

Similarly, because the issue of a corporation sole for the Director of Public Prosecutions was provided for in the criminal justice review, we are a lot more relaxed about it than the Opposition Front-Bench team is, and we see merit in the arrangement. The detail would be hugely important—and we would all want to test it—but the principle would certainly not be an issue for ourselves. We have addressed some of these issues in our amendments as well. When the burden of our remarks has been on the main politics of justice and policing, and the ministry, we certainly would not wish to neglect on Second Reading important issues of principle in relation to judicial appointments, and provisions that flow from the agreement.

My party has also tabled amendments that deal with some other aspects of the Bill. Those are more by way of probing amendments where provisions are made for powers to switch from the Assembly to this Parliament or from here to authorities in Northern Ireland. We are not sure what is intended in such provisions and what they are meant to cover, so we tabled amendments so that we and other hon. Members can probe that.

3.44 pm

Mr. Alistair Carmichael (Orkney and Shetland) (LD): The hon. Member for Foyle (Mark Durkan) has just offered the House a comprehensive analysis of some of the structural absurdities—

Sir Patrick Cormack (South Staffordshire) (Con): On a point of order, Mr. Deputy Speaker. I apologise to you and to the hon. Gentleman who is speaking, but we have barely an hour remaining for Second Reading. Would you be kind enough to appeal for slightly shorter speeches than the one that has just been inflicted on us? It is very important that we hear from the First Minister, as well as from the Liberal Democrat spokesman. I might even wish to say something myself. We also need to hear the winding-up speeches.

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Mr. Deputy Speaker (Sir Michael Lord): I am sure that the whole House is aware that the clock is ticking. The hon. Gentleman has made the point well enough, and I do not think that I need repeat it.

Mr. Carmichael: I shall certainly curtail my remarks substantially.

Several points arose from the speech by the hon. Member for Foyle, which was a comprehensive analysis, although I did not share all his conclusions. On several occasions I would have liked to test his analysis, but I resisted doing so because of the time constraints that have been placed on the House. That is a very good practical illustration of the absurdity of the position in which the Secretary of State’s timetable motion has placed the House today. We are constrained from giving a proper consideration to this Bill on Second Reading, let alone at the later stages. We have two hours and 10 minutes for the Second Reading of a Bill that is of constitutional significance, and that is a constitutional outrage.

That said, the Liberal Democrats will support the Second Reading of the Bill. We have been supportive of the Government throughout the devolutionary process. Occasionally we have been critical friends, but I like to think that we have always been supportive and been able to reach an accommodation with the Government. I hope that by the time that we come to the end of this process, if not in this Chamber then in the other place, we will remain able to make that proud boast. However, as the Secretary of State knows, substantial issues of difference still lie between us. As things stand, it will be difficult for me to compromise on certain points that I shall mention later, on which we have tabled amendments.

We are in favour of the devolution of criminal justice. We have supported and promoted it for a long time, and we see it as the final piece in the devolutionary jigsaw. It is a major step in the normalisation process, as it is called. Several measures have already been put in place to provide greater transparency and accountability regarding operational matters, and they now need to be plugged into a democratically elected Assembly. That would be a recognition that criminal justice sits well with the other devolved Departments, including health and education. Criminal justice does not exist in a silo.

The hon. Member for South-West Norfolk (Christopher Fraser) spoke earlier about the budget. Although that is not germane to the text of the Bill, It is part of the proper context in which we should consider the devolution of criminal justice. I was surprised when I heard the Secretary of State say that chief constables on the mainland of the United Kingdom would be envious of the budget given to the Chief Constable of Northern Ireland. That would probably be the only operational aspect of policing in Northern Ireland that would be the subject of envy from other chief constables. That point again highlights the inconsistency in the Secretary of State’s position. On the one hand, he tells us that we have to railroad the Bill through today because the whole process is so fragile, but on the other, he says that we have to look for cuts and savings in the front-line policing budget. We all know the context of the Patten level of policing being set at 7,500 until 2010 and thereafter of the suggested reduction to 6,000. To my mind, if devolution of criminal justice is to be successful politically, it must be given the resources operationally. If we fail to debate it in that context, we will have failed in our duty.

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Our principal concern, however, relates to the provisions of schedule 1, which deal with the removal of a Minister from office. The House will be aware that the schedule proposes that a Justice Minister can be removed by a simple cross-community vote in the Assembly. The Secretary of State might argue that that is the same procedure as for the removal of any other Minister in the Assembly, but to do so ignores the political implications of that part of the Bill. We have warned the Secretary of State and Ministers not to consider policing in Northern Ireland as in any way comparable to other ministries. Policing in Northern Ireland has a particular special context and special arrangements, including those for human rights compliance and the structures for oversight and accountability that are not considered necessary in the rest of the UK.

Indeed, the subject of our debate this afternoon substantiates that point. We are offered yet another model for a ministry of justice in Northern Ireland in addition to the various others that are already on the statute book. Again, it emphasises that the justice ministry will not be just another Department and says that an issue as important as policing in Northern Ireland must have special arrangements. An entirely new Department must be created, outside the 10 Departments in the Assembly, to accommodate such weighty functions. That model says that although we have already considered how such a ministry should be structured, we have not got it right yet and that the matter is too important to be anything less than perfect. Simply to say that the Minister in charge of one of the most contentious and critical Departments can be got rid of in the same way as any other Minister ignores the special circumstances that surround the role.

Policing and justice functions are different in the Northern Irish context. They are so different that the parties in the Executive believe that they should look beyond themselves to find a person who can fulfil the role of the Justice Minister. Reference has been made to the Alliance party as the elephant in the room, but the elephant that has more determination in this debate than any other is the elephant that chooses not to come to this room. It is not the Alliance party that is pulling the strings, but Sinn Fein.

It is not the function of the Bill or the House to appoint the next Justice Minister, but we all know that it is widely said that an Alliance party nominee would be expected to take up the role, for the reasons that the hon. Member for Foyle explained. It is obvious that there is a certain logic and appropriateness in that. However, to place an Alliance Minister in a role from which they could be so easily removed is, in our view, completely unacceptable. That is our point of disruption as far as the Secretary of State and the Government are concerned. There is no equivalence between a Minister who simply has to retain the confidence of his party nominating officer and one who has to maintain the confidence of political opponents while doing the most difficult job in the Assembly.

The hon. Member for East Antrim (Sammy Wilson) has recently been the subject of some controversy as Minister of Environment, given his views on man-made climate change. I wonder, in passing, whether he would retain the confidence of political opponents in the way
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that is expected of the Minister for Justice. Indeed, important though climate change is, the removal of the Environment Minister, if it were to happen, would never have the political implications of the removal of the Justice Minister.

It is also worth remembering that in a cross-community vote, the vote of a Member of the Alliance party is worth less than the vote of a Member of the DUP, Sinn Fein, the SDLP or the Ulster Unionist party—or the new force, or whatever it now is. The vote of an Alliance Member does not count in the stage that requires 50 per cent. of Unionists and 50 per cent. of the nationalists to vote, as Alliance is neither Unionist nor nationalist. Is it right that a person can be removed from such a fundamental position by a mechanism that does not even treat them as equal to the other parties in the Executive? No other party would accept such an onerous duty under such disadvantageous circumstances, and we cannot expect the Alliance party to do so.

When the House moves to consideration of the Bill in Committee, we will deal with amendments that seek to correct what we regard as an unacceptable provision. If the Government do not accept our constructive amendments, I very much regret to say that, although they will have our support on Second Reading, I cannot guarantee that they will have it much beyond that.

3.55 pm

David Cairns (Inverclyde) (Lab): I rise to support the Bill. This is my first speech from the Back Benches in nearly four years, and I am very pleased that we are talking about a Bill that moves forward a process that is very close to my heart and to the hearts of all hon. Members in the House.

I am very conscious that the First Minister has not yet had the opportunity to address the House, so I shall drastically curtail my remarks to give him that opportunity. However, I am also very pleased to follow my hon. Friend the Member for Foyle (Mark Durkan). I did not think that his speech was being inflicted on the House or on me: I enjoyed it, and he raised some serious and substantive points. I hope that my hon. Friend the Minister of State will be able to address them satisfactorily, either when he sums up on Second Reading or on Report.

I also enjoyed the retelling by my hon. Friend the Member for Foyle of his line about “vacuous models”. I enjoyed it the first, second and even third times that I heard him use it—

Mark Durkan: I have used it only once.

David Cairns: My hon. Friend says that he has used it only once, but today he referred to Hugh Hefner. When I heard it on another occasion, he mentioned Peter Stringfellow, which only goes to show that he has used the line more than once. However, it is a good line and merits retelling.

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