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We need to set a clear framework; this amendment would do that. I mean what I said at the outset: it is crucial to the success of the Government’s plans. I hope that they will have the good sense to adopt the amendment. I am not sure of the correct procedure at this stage, but it would be my intention to test the opinion of the Committee if the opportunity arose. I say that in the hope that the Minister accepts the amendment.

Lord Glentoran: I support the principle of the noble Lord’s amendment and I think that the Government are nearly there already, given what was said last night and on other occasions. As I understand it—although I may have got it all wrong, considering our rush—the principle is that the deal should be settled before an election is declared by the Secretary of State on 30 January. I thought that the Government stated last night that it would be wrong to call an election on 30 January until they were confident that everyone was signed up to the deal and was committed, as the noble Lord, Lord Trimble, has asked.

Lord Rooker: I will address Amendment No. 28 in some detail, but will first speak to the points made by the noble Baroness regarding Clause 3 and the date. It is true that the position was, when we were considering the other Bill in the summer, to have the Assembly up and running on Friday of this week. It did not make sense to do that and then hold the election in 2007. That is why there was a delay. We wanted a gap. We wanted people to be able to get the Assembly up and running and start governing Northern Ireland without, in this case, facing an election in a few months. Therefore, we put off the date until 2008.

This timetable is slightly different but the objectives are the same. Obviously we have had St Andrews in the mean time, so the timetable is configured slightly differently. We end up with a fresh election to a new Assembly and with a fresh mandate for the parties based on whatever they put forward in their manifestos. It then makes sense to let that Assembly run its full course for four years so that the Members are not starting next year and then having to fight an election within a year.

That is why Clause 3 is there. It is not, as the noble Baroness said—I thought a bit unkindly—a case of the Government interfering with the electoral process. We have just taken a practical view of how politicians would operate if they got back and were faced with an early election. They would have to work with each other and then go out and fight each other almost straight away, which would not make much sense. That is why Clause 3 provides for the date for the next election to be 7 March. Obviously, for that to take place, the Assembly that was elected on 26 November 2003 needs to be dissolved on 30 January.

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Clause 3(2) and (3) disapply Article 7 of the Northern Ireland Assembly (Elections) Order 2001, which requires the chief electoral officer to call a by-election to fill a vacant seat in the Assembly. This disapplication is in respect of any vacancy which exists between the passing of this Bill and the date of the Assembly election, whether the vacancy arose before or after the passing of the Act. I think that that is quite practical within the time span that we are dealing with.

Clause 17, which was also spoken to by the noble Baroness, allows the Assembly and, by virtue of paragraph 9(6) of Schedule 1 to the Bill, the transitional Assembly to make standing orders to make provision in respect of the right to vote in the Assembly in cases where a seat has been vacated but not filled. That is the purpose of those two clauses.

Amendments Nos. 26 and 27, which I shall deal with on their own before I come to Amendment No. 28, would remove the urgency procedure for orders made by the Secretary of State relating to consequential provisions under Clause 23. Clause 23 allows the Secretary of State to make orders in relation to matters arising as a result of things done under the Bill. It is intended that it will be used to sweep up any consequential or unforeseen matters relating to, in particular, the repeal of the 2000 Act, the postponement of the elections and the dissolution of the Assembly. In short, we are referring to a technical supplemental provision. The power is not wide enough to permit substantial policy changes to take place. I hope that noble Lords will be reassured on that point.

As the power is designed to sweep up any consequential or, indeed, unforeseen matters, it would be prudent to allow for the urgency procedure to be put in place where exceptional circumstances require it. I agree that it is better for the orders to be fully debated in Parliament before they become law and, in ordinary circumstances, they would be, but I reiterate that the provisions in subsections (4) and (5) are to cover exceptional circumstances in the same way as is already provided for in the 1990 Act. Therefore, I hope that those amendments will not be pressed.

The noble Lord, Lord Trimble, has already given notice that he will probably wish to test the view of the House on Amendment No. 28, unless I can accept it. I do not think that I can but I shall seek to explain why in some detail. It is an important issue to the parties and it was the subject of some debate in the other place yesterday. As the noble Lord said, the amendment would place a requirement on the political parties to indicate their support for paragraph 6 of the St Andrews agreement, which will be inserted at the end of the pledge of office set out in Schedule 4 to the 1998 Act by virtue of Clause 7(2) of this Bill.

Paragraph 6 of the agreement, which I read out, makes it clear that support for law and order includes endorsing the policing and criminal justice institutions and actively encouraging everyone in the community to co-operate fully with the police in tackling crime. Paragraph 6 is therefore a key aspect of the St Andrews agreement and one that all parties must sign up to before the institutions can be restored.

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All Ministers must affirm the pledge of office before taking up office, and the amendment to the pledge, provided for in Clause 7 includes support for policing and the courts, as set out in paragraph 6 of the agreement.

Amendment No. 28 would make the March election conditional on all parties “publicly indicating” their intention to comply with paragraph 6. While I agree with the noble Lord that it would be desirable for all parties to subscribe unconditionally to the principles laid down in paragraph 6 as early as possible, we do not believe that specifying this explicitly in the Bill as a condition for an election will help in achieving that. I reiterate that the Government would like all parties to endorse paragraph 6 of the agreement as early as possible. While we would not wish to be advising other parties on electoral strategy—that is the last thing I am in a position to have them do—it would be an odd situation if a party such as Sinn Fein had not indicated its position to the electorate on such a crucial matter as policing before the election itself.

7 pm

In the other place yesterday, the shadow Secretary of State for Northern Ireland put it succinctly when he said that,

He went on to say that,

I hope it will satisfy the noble Lord that events themselves will force Sinn Fein to indicate its position on policing, and that he will agree that there is no need to press the amendment. If the noble Lord is concerned that some parties may simply be seeking to force an election without being serious about forming an Executive—that is the implication, and I fully accept that possibility—I point him to Clause 2(1) of the Bill, which provides for the Secretary of State to postpone elections indefinitely and dissolve the Assembly if at any time he considers that the parties will not form an Executive. The Secretary of State has made it abundantly clear that he does not want to do that, but he will do it. If we do not get devolution, we will get dissolution. It is as simple as that.

Also, Clause 2(4) provides for dissolution and the postponement of elections automatically if Ministers do not take office on 26 March. To that extent, I fully accept that the original legislation was about taking office and getting the Assembly by midnight this week. The same procedure will apply on 26 March. It will be automatic that we will not proceed, and there will be dissolution and postponement of elections.

We hope that all parties will endorse paragraph 6 of the agreement as soon as possible—the sooner, the better; that goes without saying. They will have to do it in the end. If they want the Assembly back, we all know what has to be done. On the other hand, we

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must let them do it in their own way. They know the timetable. I hope Parliament will pass this legislation, but the parties have to endorse the agreement if they want the Assembly back. That is quite clear; there can be no fudge. It will not help if the amendment is pressed today. The noble Lord is free to do so, but I ask him not to do it.

Lord Glentoran: I should like some clarification from the noble Lord. In the situation that Sinn Fein has not made a decision by 30 January when it comes to the time to call the election, will the Government still go ahead with the election?

Lord Rooker: I cannot go beyond what I have already said because I am getting into murky waters.

Noble Lords: Oh!

Lord Rooker: I am well aware that I have to be on my diplomatic best tonight and stick to the line because other discussions are taking place. Discussions about the procedures on Friday are taking place.

It is incredibly sensitive. We are going to pass legislation in the knowledge of what we hope will happen. I have said that neither Parliament nor the Government can force people into government. We are even having discussions about the timetable and choreography of Friday, so I cannot possibly speculate about 30 January. The date is there and clear, the powers of the Secretary of State are clear and, at the end of the day, it must be done—otherwise there is no devolution. What the noble Lord is asking for in the amendment must take place; there is no fudge on that.

Baroness Harris of Richmond: It is nevertheless our responsibility in this House to ensure that all the areas on which noble Lords feel uncomfortable and unhappy are properly and thoroughly aired. Having said that, I indicate to the noble Lord, Lord Trimble, that we will support him if he presses his amendment at the proper time.

I thank the Minister for responding to my opposition to Clauses 3 and 17 standing part of the Bill. I understand the Government’s stance and their eagerness to get all things started together. Nevertheless, the elections have not been properly moved. They should still be postponed until May 2008. While I understand what the Minister is trying to do, I cannot agree with it, and he must understand that.

The Minister’s argument on Clause 17, on vacancies, seemed rather weak. As I understand it, this situation has arisen following the death in September of a Sinn Fein MLA from west Belfast. Three of his substitutes are already MLAs and the other three said that they did not want to be Assembly Members. In that case there should have been an election. Instead, the Government are holding the vacancy open for the Assembly elections in May.

The Government have interfered unnecessarily. We have a clear procedure: let us try to stick to it and, in future, do so sensibly and not keep changing our minds.

Lord Trimble: I want to respond briefly—

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Baroness Farrington of Ribbleton: We are in Committee. The noble Lord can speak at this point or when his amendment comes up in its place on the Marshalled List. It is for the noble Lord to decide which, but it is normally inadvisable to do both.

Lord Trimble: I shall exercise my option in favour of saying a few words now. If I wait until later, I might forget the points I was going to make. I shall unburden myself of them now.

In commenting on my amendment, the Minister quoted with approval the shadow spokesman on Northern Ireland in another place, David Lidington, who said that it must be clear by the end of January. Has the Minister stopped to think about what the situation will be if it is not clear? I shall assume for the sake of argument that the Democratic Unionist Party will go into the election honourably trying to build support for the St Andrews agreement, as it appears to be doing at the moment. If republicans have not committed themselves during that election to supporting the police, a substantial number of the unionist electorate will assume that the whole issue is about to be fudged and the republicans are going to get away in a smokescreen with the connivance of the Government. They will either stay at home or vote for other candidates in order to express their scepticism and disapproval of the situation. The election will be a shambles, and it will damage the political process in Northern Ireland. The Government will have to abort at a later stage anyway.

In that situation, it is much better to put pressure on to get the right result at the right time. If a difficult decision has to be taken, do not shirk it or look as though you are shirking it. There is the unfortunate impression that what was a firm deadline for Friday has been fudged. That is the view that the man in the street will take. People will listen to what the Minister said and suspect that another fudge is coming. That is why I believe that this is crucial for the success of the Government’s proposals, which I want to see. The amendment does not seek to make life difficult; it seeks to get the Government to hold people’s feet to the fire instead of giving them a free ball. Those are my comments on this matter. At a later stage, I shall not move my amendment or make any further comment.

Clause 3 agreed to.

Clause 4 agreed to.

Clause 5 [The Executive Committee and the Ministerial Code]:

Lord Trimble moved Amendment No. 2:

The noble Lord said: I shall speak also to Amendment No. 29. Clause 5 provides for a ministerial code, among other things. I am in favour of a ministerial code, and we were in favour of putting it on a statutory basis. The Northern Ireland Executive drew up a ministerial code and revised it in the light of experience. If people are taking the former ministerial code as a starting point for a future ministerial code, it is important that they operate with regard to the revised ministerial

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code. It was never formally approved by the Executive as a whole. It would have been, but my party colleagues and I were not prepared to sign off on it. We had no objections to any of the provisions; our reluctance was due to the fact that I was in breach of the revised code and intended to continue to be in breach of it with regard to nominations to North-South Ministerial Council meetings. I thought it would be inconsistent for me to take a revised ministerial code to the Executive and say, “Let’s approve this,” and then say, “By the way, I’ve got to continue being in breach of it”. We held it back in order to avoid that hypocritical action, but we did not disagree with any of its substantive provisions. It is important that it is that ministerial code because it contains a lot of additional material on accountability issues. We were developing questions of accountability. That is the background to Amendment No. 29.

Amendment No. 2 removes subsection (10) of new Section 28A. It is important from a practical point of view. New Section 28A(10) states that,

and, in the event of a ministerial decision being successfully challenged as having been taken in breach of the ministerial code, it would make that decision void ab initio. It states that there is no power to take that ministerial decision, and if he purports to take it—wrongly—it was not a decision.

There may be an interval between a decision being made and it being challenged. If it is successfully challenged, everything that happened in between falls. What if the decision was to award a major contract to build a road, or something of that nature, and some months or longer later it turns out that the decision was void and the money improperly spent? The contract is then frustrated. This is an impossible situation to have. It is an impossible situation to put businessmen into because businessmen about to enter into a contract based on a ministerial decision would, if a significant sum of money was involved, have to inquire whether the decision was properly made. This is not practical.

Taking out subsection (10) would make ministerial decisions voidable—in other words, if successfully challenged they would be void just from the moment of that decision, not from the date of the decision. That is an important and practical distinction. It also reflects on the character of the ministerial code. I will not say more than that. I just wanted to draw the Minister’s attention to what the effect of subsection (10) appears to me to be—to make the decision void ab initio—and to point out that this will have huge practical consequences and is not advisable. It would be better simply for the decision to be voidable. I look forward to hearing what the Minister has to say on the subject. I beg to move.

Lord Morrow: I have two questions on Clause 5 for clarification. I gave the Minister prior notice of these. First, on the operation of Section 20(3) and (4), can the noble Lord confirm that once a matter is brought to the Executive, it is for the Executive, rather than the Minister who brought the matter to the Executive,

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to determine the way forward on it? Secondly, can the Minister confirm that if a decision is taken in contravention of new Section 28A, it would not be legitimate and would be open to legal challenge?

Lord Rooker: I hope I will be able to deal with the points raised. I shall deal first with Amendments Nos. 2 and 29. I am happy to deal with the generality of Clause 5 as well. Amendments Nos. 2 and 29 relate, as the noble Lord, Lord Trimble, said, to the ministerial code under Clause 5 and the draft ministerial code provided for under paragraph 4 of Schedule 1.

Amendment No. 2 seeks to remove subsection (10) of new Section 28A of the 1998 Act, which is inserted by Clause 5. Subsection (10) provides that a Minister or junior Minister does not have ministerial authority,

that is, where the ministerial decision in question relates to a matter which should fall to the Executive Committee for consideration and agreement by virtue of Section 20(3) and (4) of the 1998 Act.

Clause 5 makes provision for a statutory ministerial code to be in place to safeguard appropriate ministerial accountability to the Executive. New Section 28A(10) makes it very clear that a Minister has no authority to flout the duty he or she is under to refer matters which are for the Executive Committee. Of course, in some cases, where the duty is breached, the Executive Committee might, nevertheless, choose retrospectively to ratify a decision or to retake it. But that would be a matter for the Executive Committee. We are satisfied that subsection (10) is appropriate and does not in any way hamper ministerial autonomy when exercised in a proper fashion.

7.15 pm

I turn to Amendment No. 29. As drafted, paragraph 4 of Schedule 1 places a duty on the Secretary of State to impose a draft ministerial code in the event that the transitional Assembly is unable to approve a draft code before 24 March 2007. The Bill provides that the basis for the Secretary of State’s code must, as far as practicable, be in the form of any parts of the draft ministerial code that have been approved by the transitional Assembly before 24 March 2007; or otherwise in the form of the former ministerial code approved by the Executive and that applied to members of the Executive prior to the most recent suspension.

Noble Lords will be aware that, as we have been informed by the noble Lord, prior to the suspension of the Executive and the Assembly, the former ministerial code was undergoing a review process and a revised version had been drafted by officials, although not agreed by the Executive. Amendment No. 29, in the name of the noble Lord, Lord Trimble, would amend the definition of a former ministerial code on which the Secretary of State must base his code to mean a revised draft code drafted prior to suspension, but which had not been considered or agreed by the Executive, and had not therefore applied to members of the Executive—

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