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4 Mar 2009 : Column 938

Mr. Woodward: With huge respect to the hon. Gentleman, we have not devolved our responsibility. I am not asking the House to devolve responsibility this afternoon. I am asking it to add an additional model to the existing number of models, from which the Assembly will be able to choose, if it so wishes, to set up and use as a model for a Department of Justice. I remind the hon. Gentleman of the democratic structure that this House democratically put in place in previous legislation, which means that, even if the Assembly manages to find agreement and establish a Department of Justice, it will be up to the First Minister and Deputy First Minister to put forward a motion in the Assembly and for the Assembly to vote on it, after which—the hon. Gentleman is right—this House will have to make a decision to devolve. He really must separate out what is being done in this legislation with what might happen if the democratically elected Members of the Assembly at Stormont decide at some future date to exercise their authority.

David Cairns: May I encourage my right hon. Friend to continue along the path and treat what the hon. Member for Orkney and Shetland (Mr. Carmichael) has said with just a pinch of salt? We regularly get lectures from his party about issues that have a majority in the Scottish Parliament; that should dictate what is happening here, whether we are talking about opposition to identity cards or any other issue. My right hon. Friend is going down exactly the right path, and he is correct to say that, in the current circumstances, rejecting what the elected members of the Northern Ireland Assembly recommended to us after considering the issues in detail would be going down the path to instability.

6 pm

Mr. Woodward: I am grateful to my hon. Friend for that intervention.

To pick up the remarks that the hon. Member for Orkney and Shetland made at the beginning of his Second Reading speech and at other points this afternoon, he has been a very candid friend in this entire process. The amendments are entirely noble in seeking to probe the matter, and I will try to reassure him. I know that his interest is, in the end, only in securing stability in Northern Ireland and nothing other than that.

The hon. Gentleman has in mind—I do not know whether this is true of the First Minister and Deputy First Minister, the Assembly or anybody else in Northern Ireland—which candidate he prefers. He has mentioned David Ford, who has been referred to several times this afternoon. Let me say a few more things about the amendment in the hope that the hon. Gentleman will be persuaded, on balance, not to press it.

We all have enormous respect for David Ford and recognise the role that he has played. However, we must put on record the opportunity that he had to play a role when he and his Alliance party colleagues spoke in the debate in January. The hon. Member for Orkney and Shetland has raised the principled point that it is important for this House to pay significant attention to what has happened and perhaps to run in the opposite direction from the decision democratically taken in January.

If that issue were really the cause of the unfairness and instability that the hon. Gentleman worries about, one would expect the Alliance party and David Ford to
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make quite a lot of it, and one would certainly expect it to have featured centrally in David Ford’s remarks in the January debate. With that in mind, I re-read last night the Hansard report of that debate. I looked to see what was said and particularly at what David Ford said. In fact, he did not say a word about this particular issue. He said:

As the hon. Gentleman knows, the recommendation for this particular power to be used in this particular way for appointment and removal is explicitly made in the report.

David Ford also said:

He recognised the importance of the conditions, and he is a man of fine principle. What, then, did he proceed to say? He said:

He also said:

In other words, he provided a great deal of support for the report.

I am simply saying to the hon. Member for Orkney and Shetland that if his concern was such a problem, why did it not appear in the Assembly debate? I accept that the issue is important, but it was not raised in the debate and did not concern those who were present. Given that we are not asking for devolution this afternoon but are merely seeking to create an additional model, we should be very careful before railroading such a consideration through.

Sir Patrick Cormack: If I may say so, the Secretary of State is replying to the debate on the amendments in exemplary fashion. He is, very properly, taking his time to do so, but does not this illustrate the nonsense of today’s timetable? Here we are, considering the first group of amendments. He is behaving as a Secretary of State should—seeking to respond, to persuade, to explain, and to deal adequately and properly with amendments. He has been on his feet since 5.48 pm. No criticism could possibly be directed at him, yet in less than an hour, all debate on the Bill in the House will have finished. It really is not good enough.

Mr. Woodward: I hear the hon. Gentleman, although, as he knows, we had that debate earlier. Indeed, for reasons that I respect, but perhaps do not agree with, it took considerable time that we might otherwise have used.

Mr. Carmichael: I am grateful to the Secretary of State for giving way. He is being generous with his time, if little else. I concur with the remarks made by the hon. Member for South Staffordshire (Sir Patrick Cormack) as far as they relate to the timetable, but if this is dealing with amendments in an exemplary fashion, he is setting the bar rather low.

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The Secretary of State speaks about respect for David Ford, then deals with his actions in the Assembly debate in a way that I think rather lacks a degree of respect, which I am looking for. If the Secretary of State is seeking to persuade me not to press the amendments, he is going about it in the wrong way. Is he really saying that, because of that one speech, the position of the Alliance party is bound thereafter for all time, or that I, as a Front-Bench spokesman in this House, should necessarily be bound? If that is the height of his argument, it is not impressive.

Mr. Woodward: It is difficult to respond to that rationally, but I will do my best. I simply say to the hon. Gentleman that I am working on the facts and the speeches that were made in the Assembly. It is not my responsibility what Mr. Ford says or does not say; I can only report what he has said. In reporting what he has said, it is perfectly clear to me that he had the opportunity, if this was an issue of such concern, to raise it. With huge respect to the hon. Gentleman, it is not entirely irrational for me to have expected Mr. Ford to raise the issue at that time.

All I say to the hon. Gentleman is that if his criteria are stability and fairness—if they are the two criteria we should operate on—what represents the greater unfairness and the greater instability? Those measures were not asked for in the Assembly. They have not been asked for by Mr. Ford and were not asked for by the Alliance party in the Assembly debate, which was voted on. Those measures are not a fair reflection of where the Assembly is. Therefore, with huge respect, if we choose to depart from that, we will have to accept the consequences. It is my judgment that, for that reason, we should not accept these proposals. However, I ask him to remain our candid friend. I know that he might not like what I have said this afternoon, but there is nothing I can add to what I have already said. For the reason I have given, the Government oppose the amendments, as they constitute a departure from the position that has been agreed.

The Government recognise that there have been concerns that the power could be used vexatiously. That is why proposed new subsection 3D(13) of section 21A of the Northern Ireland Act 1998, as amended, which is in schedule 1 of the Bill and provided for at line 5 on page 7, restricts the circumstances in which a motion for removal can be tabled. It needs either to have the support of 30 or more MLAs or to be tabled by the First and Deputy First Ministers acting jointly. Those filters are the same as those that already apply to exclusion motions under section 30 of the 1998 Act.

Amendment 3 would provide further protection against such vexatious requests by providing that the Assembly’s Standing Orders may limit the number of removal motions that may be moved during any period. However, the power for the Assembly to regulate its own proceedings by Standing Orders is already provided by section 41 of the 1998 Act. It is therefore the Government’s position that such an amendment is not required.

Mr. Peter Robinson: May I add my voice to the attempt to end any doubt on the part of the hon. Member for Orkney and Shetland (Mr. Carmichael) about what may lie behind the appointment of a Justice Minister by the method that is chosen, or indeed the removal of the Justice Minister? Neither the First nor the Deputy First Minister will wish to do anything
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other than give full support to a Justice Minister, especially a Justice Minister who will have been appointed by a more democratic method than any other Minister in the Executive and who will therefore be harder to dismiss.

If there were any difficulty in the process, of course the prospective Justice Minister could talk to the First and Deputy First Ministers about what lay ahead to ensure a clear understanding of the nature of any potential removal from the job. If necessary, the Assembly itself—not the House of Commons—would have power to change its Standing Orders, through its Committee on Procedures, to make whatever relevant change was necessary.

Mr. Woodward: I think that what the right hon. Gentleman says is entirely fair, but I understand why there is concern, and I only hope that the hon. Member for Orkney and Shetland will find that we can deal with his worries.

Part 3 of schedule 1 deals with the arrangements that will apply during the initial period of devolution, up to 1 May 2012, if this new model is the one selected by the Assembly. Paragraph 6 disapplies, at the point of devolution, the normal requirement to re-run d’Hondt following the establishment of a new Department. Paragraph 7 waives, during the period up to 1 May 2012, the requirement that the Justice Minister be elected within the seven-day envelope set for the appointments of all other Ministers after an election. That avoids the possibility of another election being triggered automatically, and is intended as a prudent transitional arrangement to allow the Assembly flexibility to deal with the issue in the early years of devolution in a way that minimises disruption to devolution.

Amendment 26, tabled by my hon. Friend the Member for Thurrock (Andrew Mackinlay), opposes that provision. I hope that what I have said, and what I will say in a moment, will persuade him not to press his amendment to a vote. I recognise, of course, that there are fears that both after the transfer of powers and after the 2011 election, the Assembly will be unable to agree on whom to appoint as Justice Minister, but a number of amendments put before the House deal with that difficulty.

Amendments 5, 6, 8, 9 and 27 seek to provide that if a Justice Minister has not been appointed six months after responsibility for policing and justice has devolved or six months after the Assembly election in 2011, or if the Department is dissolved in 2012, the Secretary of State shall assume the direction of the Department or of the functions that it previously exercised. Amendment 25, also tabled by my hon. Friend the Member for Thurrock, provides that the Prime Minister should have power to appoint a Member of this House, or of another place, to act as Minister during even a short-term vacancy—due to a fall down the steps of Stormont, for example—in the office of Justice Minister.

Although I acknowledge that having no Justice Minister in place is clearly unsustainable in the long term, if the Assembly were unable to appoint a Justice Minister it would be right for the Government and Parliament to have the maximum flexibility to decide both when and how to intervene if such action were ever required. In my view, it is unhelpful to speculate at this point on exactly what the nature of that intervention might be, and on when it might prove necessary.

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Such prescriptive amendments would prevent the necessary flexibility in those extreme circumstances should they ever arise, and for that reason the Government oppose them. However, I am happy to assure the House that, in doing so, we are not claiming that it would ever be acceptable simply to abandon responsibility to people in Northern Ireland in the event of what would effectively be a catastrophic breakdown of confidence. Rather, we are saying that we should have confidence in the parties which have themselves produced this agreement and which have, through their Assembly, produced the report that we hope will become this legislation, and that we should back and have the confidence of the parties behind it.

Amendment 22, tabled by the hon. Members for Foyle, for Belfast, South (Dr. McDonnell) and for South Down (Mr. McGrady), adopts a different approach to the problem of the Justice Minister’s post not being filled. It proposes that in the event of no Justice Minister’s being appointed within seven days of an election, all Northern Ireland Ministers will cease to hold office and will be reappointed by means of the d’Hondt mechanism, including the Justice Minister, irrespective of what other provision the Assembly has previously made for the selection of the Justice Minister.

6.15 pm

This approach is built on by new clause 1, which provides that unless certain conditions have been met before 1 May 2012, all Ministers will cease to hold office at that point and the posts, including that of Justice Minister, will be filled using d’Hondt. This is a significant and radical departure from the wishes of the Assembly as set out in recommendation 10 of the Assembly and Executive Review Committee report, which states that the appointment of the Justice Minister should be made by cross-community vote, at least in the transitional period up to May 2012. It also goes against the terms of the agreement between the First and Deputy First Ministers, which stated that there should be no presumption about the fall-back arrangements for appointing the Justice Minister in the absence of agreement in 2012. It is essential that the House grasp this point: one of the bases of the 18 November agreement is the assumption that there would be no fall-back arrangement. Therefore, to put anything else in its place would be to undermine the principles by which that agreement was reached. It is for this reason that the Government are unable to support these amendments.

Paragraph 8 of schedule 1 provides that the Justice Department will automatically dissolve on 1 May 2012 unless the Assembly has before that date passed either a resolution, with cross-community support, to continue the Department under the same model, or an Act making new arrangements for the ministerial oversight of the Department, choosing any one of the pre-existing seven models.

Amendment 23 seeks to remove paragraph 8. Doing so would remove the provision that gives effect to the part of the First and Deputy First Ministers’ agreement that outlines that the initial arrangements for ministerial oversight of the Department should be sunset on 1 May 2012, and that there should be no presumption about what the oversight arrangements would be beyond that date. This was an integral part of the political agreement that enabled recent progress. In addition, removing
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paragraphs 9 and 10 would mean that, should the Assembly not elect to use the Minister/junior Minister model in the first instance to set up a Department of Justice, it would be unable to switch to this model at a later date, should it wish to do that.

Amendment 23 also seeks to remove paragraphs 9 and 10, which make technical amendments to sections 21B and 21C of the 1998 Act to allow for the possibility of this model—the Minister/Deputy Minister model—being selected as the second model. This is necessary because at the time that model was legislated for, it was anticipated that it would be used as the first model and the legislation was drafted accordingly. The Government therefore oppose this amendment.

This clause and schedule are necessary to give effect to the agreement reached by First and Deputy First Ministers on the departmental model for a Justice Department and, as such, to pave the way for the future devolution of policing and justice at the point that the Assembly is ready to request it.

Mr. Laurence Robertson: The Secretary of State has dealt with one of our amendments—that relating to the independence of the judiciary and the police—but he has not really spoken to amendments 5 and 6 regarding the time limit for appointment both now and after an Assembly election. May I invite him to do so?

Mr. Woodward: With respect, I think that when the hon. Gentleman reads Hansard, he will see that I did in fact address that.

In conclusion, let me simply say that I believe these issues were very carefully weighed by the Assembly and Executive Review Committee, that it reached the right conclusions, and that this model will give stability and fairness for this interim period until arrangements for a permanent Department are put in place. It might also be of assistance if I remind the hon. Gentleman that these proposals include a review of the arrangements by the Assembly before May 2012. That should provide some comfort to him, and to other hon. Members who, very understandably, have highlighted issues, but which I believe can, on closer scrutiny, be satisfied.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2

Judicial appointments and removals

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

The Chairman of Ways and Means (Sir Alan Haselhurst): With this it will be convenient to discuss the following: That schedule 2 be the Second schedule to the Bill.

That schedule 3 be the Third schedule to the Bill.

That schedule 4 be the Fourth schedule to the Bill.

That schedule 5 be the Fifth schedule to the Bill.

That schedule 6 be the Sixth schedule to the Bill.

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