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4 Mar 2009 : Column 920

I thank my hon. Friend the Member for Inverclyde (David Cairns) for his speech. He was an excellent colleague in the time that we worked together in Northern Ireland, and he made an important contribution. The right hon. Member for Belfast, East also made an important speech that was encouraging in terms of devolution and, in particular, the Bill before us. He outlined the work that has gone into getting to the point at which the measures in the Bill have become possible. I thought it particularly striking that he took so much time to emphasise how important it is to the DUP that the devolution of policing and justice is carried through, although he of course emphasised that who exercises those powers is important. It is also important that there is widespread community confidence, although as he underlined, that confidence is growing. That is something that we can all sense.

The right hon. Gentleman, in common with the hon. Member for South-West Norfolk (Christopher Fraser) and the right hon. Member for Suffolk, Coastal (Mr. Gummer), mentioned the issue of cost. As he knows, that is subject to considerable work, led by Jeremy Heywood, who was appointed by the Prime Minister. No doubt that work will continue to attract his attention and that of others.

I thank the hon. Member for South Staffordshire (Sir Patrick Cormack) for the remarks that he made, and for his support and his scrutiny of all the issues that we are discussing today, as well as on other occasions.

I turn finally to my dear and hon. Friend the Member for Thurrock (Andrew Mackinlay), who I know was somewhat frustrated that he could not have quite as long to speak as he perhaps would have liked—we seldom do in this place. He raised some important points. If somebody left office, as it were, by accident, the Assembly would have the powers and the wherewithal to appoint somebody to stand in their place. It would be the same mechanism for then appointing somebody to succeed them.

My hon. Friend also asked about extraditions. Extraditions will not be affected by any measure in the Bill, although I am happy to meet him—

4.49 pm

Four hours having elapsed since the commencement of proceedings on the allocation of time motion, the Deputy Speaker put the Question (Order, this day), That the Bill be now read a Second time.

Question agreed to.

Bill accordingly read a Second time; to stand committed to a Committee of the whole House (Order, this day).

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Northern Ireland Bill

Considered in Committee (Order, this day)

[Sir Michael Lord —in the Chair]

Clause 1

Northern Ireland department with policing and justice functions

Question proposed, That the clause stand part of the Bill.

The Second Deputy Chairman of Ways and Means (Sir Michael Lord): With this it will be convenient to discuss the following: amendment 25, in schedule 1, page 6, line 10, at end insert—

‘(2A) During the period between the relevant Minister ceasing to hold office and an appointment being made under the provisions of this Part, the Prime Minister shall appoint a person, being a member of the United Kingdom Parliament, to discharge the duties of the office.

(2B) A person appointed under sub-paragraph (2A) may speak and move motions in the Assembly.

(2C) The provisions in sub-paragraphs (2A) and (2B) shall not apply if the relevant Minister has ceased to hold office by virtue of a dissolution.’.

Amendment 19, page 6, line 15, at end insert—

‘(4A) But a member of the Assembly who is a member of a political party may not be nominated unless the nominating officer of the party consents to his nomination within a period specified in standing orders.’.

Amendment 7, page 6, line 37, at end insert

‘and in addition has made a solemn declaration to respect the operational independence of the Chief Constable of the Police Service of Northern Ireland and to uphold the independence of the judiciary’.

Amendment 20, page 6, line 42, leave out ‘or’.

Amendment 4 , page 6, line 44, at end insert ‘by such reason as—

(i) he has been convicted of a criminal offence in Northern Ireland or elsewhere after the date of his appointment;

(ii) he has become bankrupt or made a composition or arrangement with his creditors;

(iii) he is not committed to non-violent and exclusively peaceful and democratic means;

(iv) he is otherwise unable or unfit to discharge his functions as a minister.’.

Amendment 21, page 6, line 44, at end insert ‘or

(d) where consent to his nomination was required under sub-paragraph (4A), he is dismissed by the nominating officer who consented (or that officer’s successor) and the Presiding Officer is notified of his dismissal.’.

Amendment 3, page 7, line 9, at end insert—

‘(13A) Standing orders may (but need not) limit the number of such motions that may be moved during any period specified in standing orders.’.

Amendment 8, page 8, line 10, at end insert—

‘Immediate filling of Ministerial office6A If, after a period of six months following a devolution Order relating to policing and justice being made, the Ministerial office has not been filled, the Secretary of State shall assume the direction of the department.’.

Amendment 26, page 8, leave out lines 12 to 22.

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Amendment 22, page 8, line 13, leave out subsections (2) and (3) and insert—

‘(2) If the relevant ministerial office has not been filled within the period mentioned in section 16A(3) then—

(a) all Northern Ireland Ministers shall cease to hold office, and

(b) all ministerial offices (including, notwithstanding any provision to the contrary, the relevant ministerial office) shall be filled by applying section 18(2) to (6) within a further period of seven days.

(3) Accordingly—

(a) section 16A(8) of the 1998 Act shall apply to a person taking up Ministerial office as a Northern Ireland Minister as if it referred to the period mentioned in sub-paragraph (2)(b); and

(b) section 32(3)(a) of the 1998 Act shall apply as if, in the case of Ministerial offices to be held by Northern Ireland Ministers, it referred to the period mentioned in sub-paragraph (2)(b).’.

Amendment 5, page 8, line 15, at end insert

‘but within a period of six months beginning with the day of first meeting of the Assembly’.

Amendment 6, page 8, line 16, leave out sub-paragraph (3) and insert—

‘(3) Sections 16A(8) and 32(3)(a) of the 1998 Act apply accordingly.

(4) If the relevant ministerial office is not filled within the period specified in sub-paragraph (2) the Secretary of State shall assume the direction of the Department.’.

Amendment 2, page 8, line 22, at end insert—

‘Minister ceasing to hold office7A Paragraph 3D(11)(c) of Schedule 4A to the 1998 Act does not apply—

(a) before a resolution is passed for the purposes of paragraph 8(1)(a) below, or

(b) if no such resolution is passed, before 1 May 2012.’.

Amendment 23, page 8, line 24, leave out paragraphs 8, 9 and 10.

Amendment 9, page 8, line 28, at end insert—

‘(1A) In the event of the department being dissolved on 1 May 2012 or before, and neither of the provisions of sub-paragraph (1) have been fulfilled, the Secretary of State shall assume responsibility for policing and justice.’.

Amendment 27, page 9, line 15, at end insert—

‘(10) If the department is dissolved at any time, the direction of the functions formerly performed by the department shall be undertaken by the Secretary of State.’.

That schedule 1 be the First schedule to the Bill.

New clause 1— Expiry of sections 21A, 21B and 21C of and Schedule 4A to the 1998 Act—

‘After section 21C of the Northern Ireland Act 1998, there is inserted:—

“Expiry of sections 21A, 21B and Schedule 4A

21D (1) Unless, before 1 May 2012, the conditions set out in subsections (2) to (6) are met, then on 1 May 2012—

(a) all Northern Ireland Ministers shall cease to hold office (including any relevant Minister within the meaning of Schedule 4A);

(b) any deputy minister or relevant junior minister within the meaning of Schedule 4A shall cease to hold office;

(c) sections 21A, 21B and 21C and Schedule 4A shall be repealed;

(d) notwithstanding any provision of any Act of the Assembly to the contrary, there shall be only one ministerial office in respect of a Northern Ireland department exercising functions consisting wholly or mainly of devolved policing and justice functions;

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(e) all ministerial offices are to be filled under section 18 of the 1998 Act.

(2) The first condition is an Act of the Assembly has provided for a Northern Ireland department exercising functions consisting wholly or mainly of devolved policing and justice functions.

(3) The second condition is that any provision of the kind referred to in section 21A(3), (3A), (4), (5) or (5A) was enacted, it has been repealed.

(4) The third condition is that a determination has been made under section 17 creating a single ministerial office in respect of the Northern Ireland department referred to in subsection (2).

(5) The fourth condition is that all ministerial offices have been filled under section 18 of the 1998 Act.

(6) The fifth condition is that an order referred to in section 4(2A) has entered into effect.”.’.

4.50 pm

Mark Durkan: As I said on Second Reading, and as Members will know very well, the SDLP does not have much of an appetite for clause 1. Indeed, we might have something of an allergy to it. However, as golfers apparently say, we must play the ball where it lies. We know what has been happening, and we know what will be happening.

Despite our misgivings about the changes involving the appointment of Ministers and the damage that that will do to the agreement, we have tabled a number of amendments that we believe would make good some of the damage, and also provide for a more definite fall-back than is provided for in the Bill. Indeed, we have been told that the Bill contains no fall-back.

Amendments 22 and 23 and new clause 1 are intended to deal with what will happen in 2011, and the possibility of an indefinite period with no Minister, following an Assembly election. Amendment 22 proposes that, rather than there being an election after seven days, the d’Hondt system would be reverted to: the fall-back would be as per the agreement. We believe that that would help to concentrate minds, because if parties wanted to avoid the d’Hondt option they would ensure that there was agreement on the election of a Minister, so the issue would not arise. The amendment would, we hope, help to avoid the difficulty that I described earlier.

Amendment 23 and new clause 1 deal with the 2012 problem: dissolution. The Minister said that the House was leaving all this to devolution, after which it would be a matter for the parties. However, the Bill does not only devolve; on 1 May it will dissolve as well, and we consider that wrong, rash and dangerous. We do not assume that there will be “sweetness and light” agreements before that date, and that people will not play all sorts of games of political brinkmanship on the way. We want a fall-back position guaranteeing that a Department will continue so that people can be assured of stability.

Mr. Peter Robinson: So that the hon. Gentleman does not put an unhelpful construction on it, let me explain why the outcome was agreed. It was recognised that, as policing and justice had not been dealt with in any Assembly for decades, it would be best to have the operation up and running under an agreed system: let us see where the problems lie and where the improvements can be made, and then we can design the more permanent model. No ulterior motives were involved.

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Mark Durkan: I hear what the right hon. Gentleman says, but I have also heard him say on many occasions that the DUP does not want to go into devolution in circumstances in which there would not be a default position. Here we have the devolution of justice without a clear default position. Some of us do not believe that devolution without default should mean returning to direct rule. Some of us do not want to pull the direct rule communication cord just because political games are going on. We tabled amendment 23 to make good the problem that I identified earlier, which I shall not rehearse again.

Amendments 19, 20 and 21 relate to a point touched on by the hon. Member for Orkney and Shetland (Mr. Carmichael): the role of the nominating officer. Previous Government models for various forms of election of a Justice Minister allowed the nominating officer to consent to the nominations, and also to have a role in the removal of a party member from office. That is clearly absent here.

A number of questions arise, including those put by the hon. Member for Orkney and Shetland. There is nothing in the Bill to protect a Minister of Justice from being ousted from office on a pretty capricious basis. The fall-back—or non fall-back—position in paragraph 5(2)(b) of schedule 1 is to do with whether or not the Minister and deputy Minister can be from the two largest parties. Even if an Alliance Member had occupied the post on a transition basis, they might be discriminated against and eliminated from the fall-back model. That is why the Alliance should not, perhaps, trust everything in these arrangements.

There is another question for the Alliance party. It might not want a role in terms of the nominating officer and nominating or appointing the transitional Minister, because it might want to be able to say that they are not an Alliance Minister—it might want to be able to say that it is still the principled Opposition, and that it has not nominated or directly appointed a Minister, but that they are an Assembly nominee. Therefore, the Alliance would protect its position as being the Opposition, as it would claim. Our amendments are intended to address these matters.

Mr. Nigel Dodds (Belfast, North) (DUP): Does the hon. Gentleman not accept that at present the Assembly works in such a way that if a party in the Executive decides it wants to be in opposition, it simply says it is opposed to everything? Therefore, on the point about a proposed Alliance Minister saying that, because there was no nominating officer, their party is divorced from the situation, that happens even when there is a nominating officer—and even the hon. Gentleman’s party denies any responsibility for Executive decisions on occasions, even though it has been participating in that.

Mark Durkan: I have observed before that irony in politics is usually just hypocrisy with panache. A Democratic Unionist party Member is complaining about parties with Members in the Government engaging at the same time in some Opposition tactics in the Assembly, but the DUP did that in the past, and it still does it. The hon. Gentleman asked the Minister of Education to change the budget even though it had already been decided, and brought motions before the Assembly, so we will take no lessons from him on that.

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That other Members have already asked about the nominating officer issue adds to the currency and relevance of our amendments. We do not particularly want to press them to a Division; we just want to find out more about the thinking on these matters. Our reservations about clause 1 are known. We have tabled these amendments to try to reduce, mitigate and make good some of those concerns, and to undo and limit some of the uncertainty that the Bill is impregnated with.

Dr. McCrea: I am delighted that the hon. Member for Foyle (Mark Durkan) is learning so many lessons from the DUP about ingenuity and excellence in strategy. A colleague of his in another place suggested he would have to be up early in the morning and have his breakfast a lot earlier before he would ever be able to outwit the DUP, but if he remains a Member for a long time he may learn a lot more about how to progress on the political scene.

I wish to talk about the SDLP’s new clause 1 and about d’Hondt being the fall-back position if there is no agreement by May 2012. Let us be quite frank about this: the intention of those who want a real democracy in Northern Ireland is to move away from d’Hondt. We do not want to replicate a situation in which we have mandatory coalitions. Some Labour Members mentioned that to have a good system of Government, we need a vibrant Opposition, and I agree. Therefore, having everyone go into a mandatory Opposition and all the major parties are in the Government is not the best way to govern people. A voluntary coalition is completely different: those in government could have policies that are in line with each other, and those with different policies could oppose them and present their views before the people. That is a vibrant democracy, and although some might suggest that we keep on with and replicate the d’Hondt system, I believe the people of Northern Ireland want to move away from that.

Let me make it abundantly clear to the hon. Member for Foyle that the November agreement was predicated on there being no fall-back provisions in place after 2012, because in reality the fall-back is this House. Why, as an honourable Member of this House, would he not want that to be the fall-back position? Why would he not wish to rely on the sovereignty of this Parliament? I cannot understand why he is afraid of that situation.

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