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In the current circumstances, we do not want the Justice Minister to be selected by the d’Hondt system and that is why these arrangements are being put in place. Let us be frank about this; we must make things abundantly clear. The Democratic Unionist party does not want, and promised the people that there would not be, a Sinn Fein Member as the Justice and Policing Minister. We will not allow such a situation to develop—that was part of our election manifesto and promise to the people. The process that has been spoken about will ensure that, as the DUP has a veto on that part. Without apology we have a veto on that part, in the same way as the Government ensured that there would be the triple lock veto over the timing of moving forward on the final process to the devolution of policing and justice. This House ensured that that would be put in place. We will hold this House to it and, thus, my colleagues and I shall be totally opposing new clause 1.
Andrew Mackinlay: I have tabled three amendments, and I wish to amplify them. I still hope that I will be able to hear from my hon. Friend the Member for Upper Bann (David Simpson); to the extent that I contributed to the squeezing out, I apologise to him and his constituents. This clause stand part debate allows us to paint a wide canvas in our debate anyway.
I perhaps unintentionally caused some levity when I referred to the Justice Minister going down the steps of Stormont. The serious point is that if there is a Justice Minister, there could be a sudden, unforeseen vacancy, as a result of either a resignation or an accident—we cannot dismiss this issue. The problem is that such occasions often occur at the least convenient time, and there is the possibility of a big political row or crisis in Northern Ireland. Let us assume, for the purposes of this debate, that the Alliance party has filled this post. It might not suit the party, at such a moment, to offer a replacement, or the replacement might not be acceptable to the other political parties of Northern Ireland, and thus there could be a paralysis for a significant period.
May I buttress my argument by pointing out that when the right hon. Member for North Antrim (Rev. Ian Paisley) stepped down as the first First Minister, that created a hiatus—a period when it was not possible to agree, for some time, normal government arrangements? Had he not stepped down, that probably would not have happened, but the occasion invited some people, who are probably not in this Chamber, to orchestrate difficulties. I foresee a situation in which this would happen as a surprise and without notice. I put the following question to the Committee: can there be a Justice Ministry with no Minister? There is no jurisdiction in the democratic, free world that does not instantly replace a Justice Minister—it is done with dispatch.
Mr. Dodds: I understand entirely the point that the hon. Gentleman is making. With reference to the events of last summer, it needs to be put on the record that there was a smooth enough transition in the actual appointment of the new First Minister and Deputy First Minister. To come back to the point that I made in an intervention on the hon. Member for South Down (Mr. McGrady), what happened subsequently was that Sinn Fein decided—this was nothing to do with the process of the appointment of the First Minister and Deputy First Minister—to block meetings of the Executive on a political basis. We wanted to proceed with those meetings.
Andrew Mackinlay: I am grateful to the hon. Gentleman for setting the record straight, but that does not detract from my point. It was the occasion of the change that gave Sinn Fein an opportunity to cause problems, and that could happen again. We need to build in some contingency provision should such a situation occur and there is a sudden and unforeseen vacancy between now and the next Stormont elections, never mind 2012. The House should consider that if there is no prospect of an immediate appointment to the position—by which I mean two or three days, or at most a week—the default position should be that the Prime Minister would appoint someone with the power to appear before Members at Stormont and answer their questions, and to pilot legislation, although without voting rights.
Such a provision is necessary, because at the moment of his or her demise the Justice Minister could be in the middle of taking legislation through Stormont, and that would have to be suspended, even though it might be important or even—dare I say?—urgent legislation. That is the reasoning behind amendment 25. If a vacancy for a Justice Minister were not filled with due dispatch, as would be the norm in every jurisdiction in the free world, someone would be appointed by the Prime Minister of the United Kingdom. If that provision were on the statute book, it would help to focus the minds of those who make up the body politic of Northern Ireland to resolve the issue themselves.
After the 2011 Stormont election, it is possible that the Assembly will comprise only designated Unionists and designated nationalists. That could lead to paralysis again, so the sanction of dissolution, and thus another election, should exist if the new Stormont cannot resolve this Executive appointment. That sanction exists for the rest of the d’Hondt Executive, and this Bill ring-fences the Justice Minister by saying that the sanction would not apply. That would again invite those who are not in this Chamber to cause political aggravation. We need to strike out that provision, as amendment 26 provides.
The parliamentary draftsmen used peculiar wording in the provision to the effect that the Department would be dissolved. That is surprising, because a Department does not dissolve. A Minister might disappear, and paralysis might ensue, but the actual functions of a Justice Department would still be there—the civil servants, the lawyers and the bricks and mortar. We need provision for 2012, because if the Northern Ireland Assembly and Executive were not able to resolve a post-2012 situation, the default position should be a reversion to direct rule for that particular Department, and it is only good practice to put that in the Bill.
Those are the points that I wanted to raise and it seems to me that my amendment 27 would be a sensible solution. If we had had more time and a proper Committee stage, we could have explored this issue. In any event, those of us who have tabled amendments are inviting those in another place, before the Bill arrives there, to discuss these options with the Secretary of State and to prepare beefed-up amendments that encourage, coax and provide for the Northern Ireland Assembly to see that today’s intentions are enduring and that once the powers for justice and policing have been devolved, they will not be subject to a hiccup or a hiatus that might be unnecessarily caused by people who might not be here.
Mr. Laurence Robertson: I want to speak fairly briefly, because we are short of time and I raised one or two issues on Second Reading. As I said, we welcome this model. It appears to us to be the best of the eight models, but we are concerned about one or two things. The hon. Member for Thurrock (Andrew Mackinlay) has reinforced the arguments about the open-ended nature of the situation. If policing and justice were devolved later this year—I hope that that will happen if the circumstances are right—how long would it take for a Minister to be in position? The hon. Gentleman is right that any Department needs a head, whether we call them a leader, a director, a Minister or something else. Otherwise, how can it function? If it can function perfectly well without that head, why should we have any Ministers at all? That is the logical conclusion of the argument.
We believe that there has to be a head of Department. We also believe that because of the special and difficult circumstances in Northern Ireland, and because this move is ground breaking, it is inconceivable that there should not be a Minister to oversee the Department. After an Assembly election, there are seven days in which all the other Ministers can be appointed, yet there is no time limit for this particular appointment. Of course, given the difficulties and sensitivities, it could take more than the normal seven days to fill the position. We also recognise that discussions have been going on about who would be suitable—perhaps I should say acceptable—in the role. It could be that that person did not win their seat back after an election, so we would have to start all over again. It could take a bit longer than seven days.
The time limit that we are suggesting is six months. According to the discussions that we have had, that is probably a long time, too. It probably is too long, but I wanted to put down some time limit and it is very difficult to come up with one. Given the record of deadlines being broken in Northern Ireland—the right hon. Member for Neath (Mr. Hain), who is not in his place but has contributed to the debate, famously broke two absolutely unbreakable deadlines the year before last—we know that it is difficult to impose deadlines. However, we already have a deadline for the appointment of the other Ministers and I suggest that we ought to have a deadline for the appointment of this Minister. As the hon. Member for Thurrock said, that would concentrate minds on what is absolutely necessary, if nothing else.
We are concerned about the immediate appointment if devolution takes place before the next Assembly elections. We are also concerned about the appointment after the next Assembly elections, so we tabled amendments 5, 6 and 8, which address those points. Amendment 8 refers to the time limits that can be taken to fill the office once the devolution order has been made, while amendment 5 requires the office to be filled within six months of the Assembly’s first meeting after an Assembly election.
In amendment 6, we propose a default position. This is a difficult matter, as we want policing and justice to be devolved, as I have said repeatedly. It would therefore be deeply unsatisfactory to return the powers to the Secretary of State, but given the nature of the problem in Northern Ireland, that would probably be the least bad of all the options. The hon. Member for Thurrock has made his own suggestions about a fall-back position. I listened to him extremely carefully and do not have violent disagreements with what he said, but I think that I prefer our amendments.
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Amendment 9 refers to what would happen after 1 May 2012 if the Justice Department were dissolved. Again, I would consider it rather unsatisfactory if that happened; I would very much prefer it if the Assembly voted to extend the present model beyond 2012 or if it chose another one, but once again we need to consider what a fall-back position might be. In amendment 9, I have proposed the same one that would apply if the Ministers were not appointed, either now or after the Assembly election—that is, that control of policing and justice would come back to this place. Again, I think that that would be highly unsatisfactory, although I do
not believe that it will happen. The delicate negotiations that have allowed us to get as far as we have lead me to believe that we are starting to build on ground that is rather more substantial than sand. I hope that we do not get to the position where the proposed fall-back would apply.
Like the hon. Member for Thurrock, I do not know exactly what would be dissolved. If the Department were dissolved, who would give direction and carry out the administration? I listened very carefully as the Minister of State, who has momentarily left the Chamber, explained what would happen. He said that the Assembly would be charged with coming up with another model or reaching some further agreement. However, if no agreement has been reached by 1 May 2012, which is almost three years off, will the parties involved be able to come to another agreement so very quickly after that date? Alternatively, will the whole structure be in chaos?
With respect to the people who work in Departments with responsibility for matters such as tourism and so on, I point out that we are dealing with matters that are substantially more difficult and dangerous for the people of Northern Ireland and, given what has happened in years gone by, possibly for people in Great Britain as well. Having listened to what the Minister of State said, I am not entirely satisfied that we can leave the Bill as it stands, and I think that I would prefer a fall-back position to be put in place.
I do not intend to speak at any length to amendment 7, which is a probing amendment to ensure the independence of the PSNI and the judiciary in Northern Ireland. It addresses the concerns that have existed in Northern Ireland for a number of years and which have prevented the devolution of policing and justice. I would very much welcome the Minister’s observations on that amendment as well.
Mr. Carmichael: I wish to speak to amendments 2, 3 and 4, which stand in my name and the names of my right hon. and hon. Friends. First, however, I should like to pick up a couple of points made by the hon. Members for Thurrock (Andrew Mackinlay) and for Tewkesbury (Mr. Robertson), both of whom have tabled amendments concerning the post-2012 scenario.
I listened with great care to both speeches, and I understand the logic of the reasoning, but I believe that putting into the Bill a provision that envisages the future involvement of Whitehall and Westminster in criminal justice matters in Northern Ireland would send the wrong political signals. Given the political history of Northern Ireland, I think that the Government would be ill advised to countenance the possibility that devolved criminal justice powers could head back here at some future stage.
Amendments 2, 3 and 4 express concerns to which I referred on Second Reading, but I will speak about each of them individually. I have already placed my concerns on record, and the Minister explained the Government’s position on those concerns. He told us in his winding-up speech on Second Reading that those whom the Assembly appoints, it should have the power to remove, because other Ministers, who are effectively appointed by their party leaders, can be removed by their party leaders. I accept that that has a legislative and constitutional symmetry, but that should not be our only consideration; indeed, it is by no means the most important consideration.
If legislative neatness had been our only consideration hitherto when passing Bills in this place, an awful lot of laws would have taken a very different shape.
The danger is that, in pursuit of legislative neatness, we might ignore or not give sufficient importance to the end product, which must surely be the devolution of criminal justice in a stable and sustainable way. I put it to the House, and directly to the Minister and the Secretary of State, that the model that they have put forward today would be neither stable nor sustainable. It would be unacceptable to leave a Justice Minister in a position in which his or her removal could be effected in a different way from that of every other Minister in the Executive. That would be unacceptable for any Minister. If the political operation of every Minister is to be of equal standing, the stability and continuity of the positions ought to be the same.
Mr. Peter Robinson: Would the hon. Gentleman not accept that although the situation for the Justice Minister is different, it is actually stronger? Surely someone who is nominated by the nominating officer of a party does not have the same standing as someone who has the cross-community support of the Assembly; it would therefore be harder to disqualify the latter from their position. On top of that, would it not be very foolish of somebody to take up the position unless they had settled, fairly clearly, that they would not be sacked on some frivolous account?
Mr. Carmichael: I accept that the right hon. Gentleman makes that point in good faith, but first, it concentrates more on the powers of appointment than on the powers of removal, and secondly I do not think that the circumstances that he mentioned do strengthen the Justice Minister’s position, because whatever undertakings might be given at the time of the appointment, none of us knows what is around the corner. Earlier, the Secretary of State spoke about frivolous removal, but the removal need not be frivolous. It might be removal on the basis of substantial and important political issues. No other Minister can be removed in that way or for that reason, and I see no reason why the Justice Minister should be put in a different position.
As we all know from our daily experience in this place, the fact is that Justice Ministers and Home Secretaries are often called on to take very difficult decisions—decisions that probably, in an ideal world, they would choose not to take. They do so because they are in a secure position, however, and because they have to. If a Justice Minister is vulnerable to a populist movement within the Assembly, they will not be able to take the difficult decisions that a Justice Minister might be required to take. In that most important sense, the standing of the Minister within the Executive is diminished.
Sammy Wilson: The hon. Gentleman describes a situation that it was never intended would occur, and nor does the legislation intend any vote of no confidence or removal of the Justice Minister to occur. The removal of the Justice Minister would not result from some popular mood in the Assembly. The removal would first require that 30 Members of the Assembly—of course, they could come from one party—would table a motion, but that motion would have to command cross-community support, so it would not be a case of one party or even a couple of parties simply taking umbrage against the Minister. Surely, a frivolous removal of the Minister would not be possible.
Mr. Carmichael: Again, I say to the hon. Gentleman that we are not just talking about frivolous removal. We could be talking about removal for very good reason. It might be a substantial political issue that commanded broad public support, as these situations often can, on a day-to-day basis. He says, “Would not be removed, would not be removed, would not be removed”, but I say “could”. From the point of view of the Minister’s position in the Assembly, that is unacceptable, because it is not a stable position.
Dr. McCrea: Surely this Minister would be more protected than any other Minister, because a nominating Minister can sack any Minister from his party at any time. One person can sack that Minister. But how could anyone defend a situation where the Justice Minister has lost the confidence of the House? Why would he be expected to stay?
Mr. Carmichael: I put that question back to the hon. Gentleman. I have spoken to number of Members of the Legislative Assembly concerning the position of the hon. Member for East Antrim (Sammy Wilson) and his comments on climate change. [Interruption.] He may not have lost the confidence of his own party, but I do not detect a great deal of confidence among the other parties. There is also the position of Catriona Ruane. I do not think, all things being equal, those Ministers could truly be said to maintain the full confidence of the Assembly. It is a consequence of the way in which the Executive is constituted that these issues are never properly tested, because everybody knows that the Ministers are impregnable. If those Ministers are impregnable, the Justice Minister should be put on exactly the same footing.
It is highly unlikely that an Alliance Minister would take the job on in these circumstances. If the Secretary of State devolves criminal justice in such a way that an Alliance Minister will not take it on, what is the point of doing it at all?
David Simpson (Upper Bann) (DUP): The hon. Member for Thurrock (Andrew Mackinlay) seemed to think that he had prevented me from speaking earlier and consequently had a guilty conscience. I assure him that I will speak to him afterwards. No, I am joking. His conscience can be clear, because it is the Government who introduced the guillotine, and they are to blame. It was impossible for hon. Members either to speak or to speak for the length of time that they might have wished. I shall be brief, but I hope that you, Sir Michael, will give me some leeway.
I want to make it clear that the DUP’s position on policing and justice has been consistent. Furthermore, it is well known to Members of this House and to the public in Northern Ireland. We support the devolution of policing and justice powers, as long as it is done in the right way, at the right time, under the right circumstances and within the right framework. That has been our approach, and it is the right one. It is a measured approach that gives the greatest chance of success in the medium and longer terms.
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