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I turn briefly to the Assembly and Executive Review Committee’s report; I understand that the Social Democratic and Labour party is well represented on that Committee. One of the Committee’s recommendations is that there
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should be one Department. That, of course, is the Democratic Unionist party’s position. Recommendation 9 states that, until May 2012, any Member elected as the Minister of Justice would require a majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated Unionists. The arrangements would be subject to a sunset clause, which would bring them to an end not later than 2012.

Mark Durkan indicated dissent.

David Simpson: The hon. Gentleman shakes his head, but members of his party are represented on the Committee.

The Committee went on to say that following a period of operation, and prior to May 2012, the arrangements could be reviewed, that permanent arrangements would be put in place by May 2012, and that there would be no fall-back arrangements. That, it said, would require the political parties to agree a way forward by that time.

Mark Durkan: The hon. Gentleman cites the report, but misrepresents the SDLP’s position. We did not endorse that position, as was reflected in the debate in the Assembly. We tabled many amendments in the Committee that were not taken.

David Simpson: I take it, then, that the hon. Gentleman is saying that his party voted against in the Committee.

The Committee also stated in paragraph 36 that for the duration of the interim arrangements—until May 2012—the DUP and Sinn Fein would not nominate any Member from their parties as the Minister of Justice.

Those recommendations reflect and uphold a key DUP position. What would they mean in real terms? I notice that the SDLP claims that all this means the tearing up of the Belfast or Good Friday agreement. I understood, however, that that agreement had been binned once the St. Andrews agreement came in; indeed, only this morning the leader of the SDLP made that very point on BBC Radio Ulster.

I do not know why anyone is surprised that the DUP should be in the business of dismantling any old and failed system. It is important that we in Northern Ireland get this issue right. It is important that policing is dealt with correctly because we have to face many major policing problems in the coming months and years. As has been mentioned today, there is a massive shortfall—possibly running into hundreds of millions of pounds—in relation to the policing budget.

I endorse what my hon. Friend the Member for South Antrim (Dr. McCrea) said. We will oppose the SDLP amendments.

Sammy Wilson: I want to deal first with amendments 5, 6 and 8, tabled by the hon. Member for Tewkesbury (Mr. Robertson). I have to say that they are rather strange. His first amendment refers to a situation in which no Justice Minister has been appointed. If that happened before 2011 under devolution, what would the fall-back position be? Would the Secretary of State take over the post? If, after an election in 2011, the post could not be filled, what would happen?

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Of course, we would be looking for a Minister only if there had been agreement and there was sufficient confidence that we could devolve policing and justice in Northern Ireland. That would require us to be assured that there was confidence in the community not only that the Assembly would exercise the powers but about the person likely to be appointed Minister. That would be determined by our knowing which party or person was likely to be acceptable. The amendment would require us to consider agreeing to devolve policing and justice and then hope that we might be able to sort out who the person was going to be. That scenario is never likely to happen.

I turn to the hon. Gentleman’s second amendment. We can prepare for the first step in devolving policing and justice following an election in 2011 and see whether we can agree a suitable candidate, but an arrangement could be put in place before 2011 that might not be possible thereafter because of the outcome of the election. My right hon. Friend the Member for Belfast, East (Mr. Robinson) has made it clear that my party wants policing and justice to be devolved only if there is long-term stability and confidence that it will be able to continue.

Let us envisage the situation that the hon. Member for Tewkesbury suggests—that we cannot agree on someone to take over as Minister. Six months is a very long period to leave a Department without someone in charge, but if we shortened the period and said, “If, after two weeks, you haven’t got a Minister, you’ve got to have somebody in charge of the Department, so let it be the Secretary of State”, that would be an odd, and very dubious, constitutional position. A threat of powers reverting to Westminster, with Westminster looking after the Department for much longer, would concentrate minds much more effectively than the possibility of the Secretary of State taking over the powers, even if we accepted that dubious constitutional arrangement.

For those reasons, I do not believe that the amendments are necessary, or that in the worst-case scenario they would be the best way forward. The default position whereby powers would revert to Westminster would be more effective in concentrating minds.

Amendments 3 and 4, which were tabled by the Liberal Democrats, deal with loss of confidence in a Minister. Under existing arrangements, there are no consequences to somebody putting down a motion of no confidence—people stick down a motion of no confidence just because they do not believe something that somebody else believes. If a motion of no confidence does not have to be tested, people stick them down rather frivolously; provided one keeps the support of the nominating officer, such frivolous behaviour can go on. I see that my hon. Friend the Member for Upper Bann (David Simpson) is looking at me; I do not know whether that is because I have lost his confidence. [ Interruption. ] I will not push that point too far.

The mechanism for appointing the Justice Minister requires cross-community support and the support of the Assembly. If that is the method of appointment, surely we should use the same method when we no longer wish that Minister to be in place. I was appointed a Minister because I had the confidence of the nominating officer; equally, I can be removed if I do not have the
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confidence of that officer. If someone has been appointed Justice Minister because they had the confidence of the Assembly on a cross-community basis—not because one person said that they would be a good person for the job—why would it not be effective to be able to remove them through that same mechanism?

Mr. Carmichael: The hon. Gentleman has moved on from the point on which I wanted to intervene, which was the fact that he clearly feels that motions for removal are moved capriciously or frivolously. Should the House assume that we would have his support for our amendment 3, which allows the Assembly to amend its Standing Orders to limit the number of removal motions that could be moved during a period that might be prescribed in the Standing Orders?

Sammy Wilson: There is a limiting mechanism already, which is twofold. First, for a motion to be tabled in the first place, the Minister would not have to have annoyed one person, or a small group of people; the Minister would have had to have taken decisions or acted in such a way that he or she had annoyed at least 30 people. For that motion to be pursued, the Minister would have had to have lost the confidence of the 30 people who had signed the motion, and cross-community support from throughout the Assembly. That Minister would have had to have annoyed people from the Unionist side and the nationalist side of the Assembly. I cannot see anything more limiting than that, and in those circumstances it is unlikely that there would be a host of motions for frivolous reasons, such as the Minister making a wrong decision about how money should be spent or about who should be appointed. There would have to be more serious grounds than that.

Mr. Peter Robinson: Does my hon. Friend accept that that mechanism is already available for other uses in the Assembly? It has never been used, despite the instances that have arisen. There was no attempt to use it against him for his views on climate change, and it was not used against the Minister of Education for her lack of direction on academic selection. It could have been used in either of those cases, for political reasons or for the purpose of disengaging the Minister concerned, but it has never been used yet.

5.45 pm

Sammy Wilson: I believe that the reason it has not been used is the very reason that I have given. I therefore believe that amendment 3 is unnecessary, because there are already mechanisms in place to prevent the situation that it envisages from occurring.

I turn to the Social Democratic and Labour party’s amendment 21, which would require the nominating officer’s consent to a Member’s nomination as Justice Minister. I suppose that a lot of the matters that I have mentioned are interlinked. The whole point of the method of appointing the Justice Minister is that it is not to be a party decision or an appointment made on the basis of a preference expressed by one person, the party nominating officer. It is to be made by the Assembly because it has a particular reason to have confidence in the person chosen. The fact that policing and justice was not a devolved matter in the first place indicates that it was a much more sensitive issue than any of
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those that are currently being addressed by the Executive and by Ministers and Departments of the Northern Ireland Government. The appointment is to be made not by the nominating officer but by the Assembly in a cross-community vote. The requirement of the nominating officer’s consent therefore not only seems unnecessary but would give the impression that the Minister was in post only because he commanded the support of that one individual, rather than because he had the support of the Assembly.

That is also the reason why I do not accept the need for the Liberals’ amendment on the removal of the Justice Minister. It will be a sensitive post, and removal from it will require a large number of people in the Assembly to have not just been annoyed by the Minister but totally lost confidence in him. It is important that that mechanism is in place, given the sensitivity of the post. It will be a different post from others, and the Minister will be appointed in a different way and require a different level of support. Equally, he must therefore be held to account in a different way. For that reason, we will not wish to support the amendments.

Mr. Woodward: I begin by thanking hon. Members for their support on Second Reading, which sent an important message from the House.

Clause 1 provides for schedule 1, which makes provision for the new departmental model proposed by the Northern Ireland First Minister and Deputy First Minister. The Bill will insert that model into the Northern Ireland Act 1998, in addition to the existing models. It does not require that it be used, but simply adds it to the menu.

Schedule 1 is split into three parts. Part 1 deals with preliminary issues, in effect positioning the schedule within the list of excepted matters in schedule 2 to the 1998 Act. Part 2 amends section 21A of, and schedule 4A to, the 1998 Act to make provision for the new departmental model. The defining features of that model are that it would consist of a single Minister, nominated by any member of the Assembly, elected by a cross-community vote in the Assembly and removed in the same way. The Justice Minister would not count towards parties’ allocation of seats on the Executive under the d’Hondt formula.

I recognise that concerns have been expressed in a number of quarters about whether the arrangements provided for in the Bill for appointing and removing the Justice Minister are appropriate and proportionate. I will try to deal with those concerns, but let me begin by saying that the Government take them very seriously. We understand why hon. Members may have concerns, but I hope that it will be possible for me to alleviate some of them.

Amendments 19 to 21, standing in the name of the hon. Member for Foyle (Mark Durkan) and his party colleagues, would require any Member nominated for the post of Justice Minister to have the consent of the nominating officer of their party before that nomination could take place and would provide for the nominating officer of the relevant party to have the ability to dismiss the Justice Minister.

The role of the nominating officer in the process of appointing and removing the Justice Minister is not a new idea, as has been said this afternoon. Indeed, it was at the hon. Gentleman’s suggestion that such a role was made a feature of the other models set out in the
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Northern Ireland Act 1998. However, the model that we are setting out in the Bill is not bound to reflect what happens in the other models, and such a role as proposed by the hon. Gentleman was not a feature of the model set out in the Assembly and Executive Review Committee report, which was approved by the Assembly on 20 January. In bringing forward legislation setting out that model, the Government have rightly been guided by the recommendations of that committee and by the views of the First Minister and Deputy First Minister, as co-chairs of the Executive.

I recognise that the Assembly’s endorsement of the AERC report was not unanimous—I am sure that the hon. Gentleman would wish to draw that to my attention—and that concerns were expressed during the debate on that report. However, the fact remains that the report—and, therefore, the model set out in the Bill—was approved in a cross-community vote in the Assembly by 51 to 16. That is a significant seal of approval for the model from the democratically elected representatives of the people of Northern Ireland. Therefore, any departure from the structure set out in that report and endorsed by the Assembly would be a departure from the wishes of the Assembly. It is for that reason that we should accept the wishes of the democratic majority in the Assembly and not accept those amendments.

Amendment 7, which was tabled by the hon. Member for North Shropshire (Mr. Paterson) and his colleagues, also relates to the appointment of the Minister. The amendment would prevent the Justice Minister from taking up office until he had made

I understand the basis for amendment 7 and support the sentiments behind it. The protections that it seeks, however, are already provided elsewhere in legislation. Section 1 of the Justice (Northern Ireland) Act 2002 already places a duty on those with responsibility for the administration of justice to uphold the continued independence of the judiciary, while the pledge of office contains a commitment to uphold the rule of law, based as it is on the fundamental principles of fairness, impartiality and democratic accountability. The Government do not believe that it would be appropriate to replicate guarantees that are already provided elsewhere in legislation. Similarly, we believe that the Justice Minister should be subject to the same pledge as the Executive Ministers.

Amendments 2 and 4, tabled by the hon. Member for Orkney and Shetland (Mr. Carmichael), pose a number of interesting questions. It is therefore appropriate to say a word or two about his remarks about the Justice Minister. He put forward the name of an MLA, but it is not for me, as the Secretary of State, to decide who the First and Deputy First Ministers, the Executive and the Assembly choose to be Justice Minister. What we are debating this afternoon is a model that can be used. I advocate that he shows a little caution, rather than perhaps being too predisposed at this stage to assume who may or may not be chosen. Yes, candidates are talked about, but what matters now is creating the model. It is not for this House to decide who should make that decision.

Mr. Carmichael: The Secretary of State will recall that I made that very point in my remarks on Second Reading. However, the model that we put in the Bill must be stable and sustainable, and I put it to him that what we have here is not.

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Mr. Woodward: Let me try to find a way to come back to that.

Amendment 2 seeks to prevent the Assembly from resolving to remove the Justice Minister in the transitional period up to 1 May 2012. I think that the hon. Member for Orkney and Shetland would argue that that is for reasons of fairness and sustainability, to use the term that he has just used. Amendment 4 provides that the Justice Minister can be removed only if the Assembly resolves that the Minister has been convicted of a criminal offence; has become bankrupt or made an agreement with his creditors; is not committed to non-violent and exclusively peaceful and democratic means; or is otherwise unable or unfit to discharge his functions. Those are all issues that I think we can understand, and the hon. Gentleman puts them forward in the context of pursuing fairness and stability. Let us see whether they will provide those qualities.

As I have already said, the arrangements in the Bill relating to the appointment and removal of the Justice Minister reflect the explicit recommendations of the Assembly and Executive Review Committee, which were voted on and endorsed by the Assembly on 20 January. What would happen if the House were to accept an amendment that railroaded a decision made in the Assembly, on the basis that the hon. Gentleman just did not like it, and that it could be unfair? A democratic majority on the Assembly and Executive Review Committee has considered the provision and produced a report, and the matter has been debated in the Assembly. It was voted on and was passed not by a small majority but by a significant one. Can we really say, “I don’t think that’s good enough”? If the test is to be stability, that would be the quickest way of installing instability at the very beginning, before those in Northern Ireland have even begun to discuss what shape or form the Justice Department might take.

Mr. Donaldson: May I remind the Secretary of State that, on many occasions in many debates in this House, when right hon. and hon. Members and I were opposed to proposals that we were unhappy about arising from the Belfast agreement and other initiatives, we were told time and again by the Liberal Democrats that we had to accept them because a majority had voted for them? Are there not double standards operating here? [ Interruption. ]

Mr. Carmichael rose—

Mr. Woodward: I acknowledge that, but I think that the hon. Member for Orkney and Shetland wants to intervene as well.

Mr. Carmichael: I think that the hon. Member for Foyle (Mark Durkan) has given the right hon. Member for Lagan Valley (Mr. Donaldson) his answer. He said that the instances to which the hon. Gentleman refers were all to do with the referendum. However, there is a constitutional principle at stake here: it is this House and this Parliament that devolve power. While any indication from the Assembly is highly persuasive and certainly not to be dismissed lightly, the final decision rests with us. We do not subcontract our responsibility in that way.

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