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We also did not doubt the sincerity of the former Prime Minister, Tony Blair, when he pledged to the people of Northern Ireland in May 1998 that paramilitary prisoners would be kept in prison unless and until violence was given up for good.Indeed, I was present when he made that pledge at the Coleraine campus of the University of Ulster, being the vice-chancellor of the university at that time. However, despite the sincerity of the then Prime Minister, as the statement was not enshrined in the Northern Ireland Act 1998, we all saw that it was impossible to insist that the promise was kept. As it turned out, it was not, and prisoners were released without the pre-condition of arms being decommissioned.

Similarly, as the recent Constitution Committee report on the surveillance society highlighted, Mr Charles Clarke, when Minister of State in the Home Office, categorically stated that anti-terrorism laws would not be used for other purposes. In fact, as the committee noted, such laws have been used by local authorities as well as by central government for other purposes. Ministerial assurances have to be discounted in the light of the experience of these examples; they have been debased so that now little confidence can be placed on them.

It is also worth remembering that, in a cross-community vote, the vote of a member of the Alliance Party is worth less than that of a member of the DUP, Sinn Fein, the SDLP or the UUP. The vote of an Alliance Party member does not count in the stage which requires 50 per cent of unionists voting and 50 per cent of nationalists voting, as they are neither unionist nor nationalist. Is it right that they could be removed

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from such a fundamental position by a mechanism that does not even treat them as equal to other parties in the Executive? No other party would accept such an onerous task under such disadvantageous circumstances. We cannot expect Alliance to do so either. Accordingly, when we come to discuss the Bill in Committee, we shall move amendments to rectify this provision.

3.52 pm

Lord Morrow: My Lords, it is right and proper that I should preface my remarks by referring to the dreadful atrocity which happened in Northern Ireland on Saturday evening. I am, of course, referring to the murder of two soldiers in Massereene barracks in County Antrim. I find it extremely difficult to use the proper words on such an occasion. I am very conscious that whatever words I might use, they will fall far short of what should be said. I am sure that every Member of the House is utterly revolted and repulsed about what happened on Saturday evening in Northern Ireland. To the two young soldiers’ families, I extend my sincere and heartfelt sympathy. Our thoughts and prayers are with them. To those who were seriously injured, we trust that they will make a speedy recovery. They did not deserve this by any standards. It is most sickening and downright appalling.

Some may recall that when I spoke in the House just over a week ago, I said that Northern Ireland had come a long way. However, I sounded a note of caution and said that it had much further to go before we could have confidence that normality had returned. Sadly, this murderous attack confirmed our very worst fears. However, none of us could have anticipated the horrific callousness and ruthlessness of what happened on Saturday evening.

Just last week, the PSNI chief constable, Sir Hugh Orde, was severely criticised after making it known that he was forced to return the Special Reconnaissance Regiment to the Province due to the possibility of an attack. Sadly, his worst fears were confirmed. It is a tragedy that there were politicians within Northern Ireland who denounced the chief constable for his actions. I trust that today, on reflection, they will see the folly of their words as two young soldiers lie dead and others seriously injured, including civilians.

Turning to the issue before the House today, in general, my noble friend Lord Browne and I will be supporting the principles of the Bill. Its introduction represents significant advancement and will, I hope, grow the confidence of communities in Northern Ireland in seeing policing and justice matters devolved, eventually, to the Northern Ireland Assembly. I should say that that is in keeping with the St. Andrews agreement. My party is acutely aware of the sensitivities around the devolution of policing and justice to the Northern Ireland Assembly. I wish to state emphatically that the unionist community, in particular, would not accept Sinn Fein being in charge of policing and justice. Of course, the nub of the requirement is that whoever holds the position has support across the community as a whole. As events in Northern Ireland progress, we are hopeful that that will eventually arrive. It should be said that events such as what happened on Saturday

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evening do not enhance the prospects for early devolution of policing and justice and the restoration of the confidence of the community.

It is ironic, however, that unionists in the past fought to have policing and justice powers. This goes right back to the setting up of Stormont and the days of Carson and Craigavon. They were particularly strong and insisted that the Stormont Parliament had them. It is also a reality that another unionist prime minister refused to continue with devolution when those powers were taken away, stating that a Parliament without them was not worth having. My party has always made that clear; indeed, we fought elections and sought and got a mandate on such issues. We made three commitments. One was that we support the principle of devolution of policing and justice functions. We always said it could happen only when there is sufficient confidence within the community. Furthermore, we do not believe there would be support for the devolution of such powers to a Sinn Fein Minister in the foreseeable future. It may be important that policing and justice are devolved to Northern Ireland, but what is more important is that, when that day eventually comes, we get them right, rather than getting them soon. The requirements for the devolution of policing and justice are threefold: that it is done in the right way, at the right time and under the right circumstances.

In conclusion, I would like to draw the attention of the House to what the Bill is not about. This is important. The Bill will not devolve policing and justice. There is a triple lock before that can happen, which has already been referred to. I draw the attention of the House to this because it is vital, in particular to those of us from the unionist community. Parliament has already set out arrangements for that—I refer to my notes because I want these important points on the record—in Section 4 of the 1998 Act. They depend on the triple lock, whereby a Motion requesting devolution needs to be tabled in the Assembly by the First and Deputy First Ministers acting jointly. After that, the Motion would need to be approved by a cross-community vote in the Assembly. The Secretary of State would then bring transfer-matter orders before Parliament in Westminster for approval and debate. The Bill—this is significant and very important—will not impose devolution on the majority if it later chooses not to exercise that power. I believe that the House is looking for an assurance today from the Minister that there will be no attempt whatever to impose the devolution of policing and justice on the Northern Ireland Assembly.

4 pm

Lord Maginnis of Drumglass: My Lords, it is with a heavy heart that I begin by referring to the brutal murder by IRA rebels of two of our soldiers and to the injuries of four others, including a local pizza delivery lad and a migrant worker. There has been so much evil and so much similar bloodshed over the past 40 years, what can one say to the families of those left behind? I feel so much for them, and for all those others whose old wounds have been opened yet again.

Since I participated in the formulation of the Belfast agreement almost 11 years ago, my party and I have paid a heavy price politically. Yet we are still proud

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that all those difficult decisions that we made were made openly and honestly and had, until now, given our community a chance to bring tit-for-tat politically motivated killings to an end. Subsequently, the same selfishness that has brought this great nation to its knees economically has continued to pervade our fragile peace, as people secretly and in ignorance tinker around with what those years of tragic experience helped us to create out of the mayhem.

In the circumstances, it is ironic and tragic that we come here today to be asked to build on the selfishness and deceit that began at St Andrews and has been compounded by what are now referred to as the two major parties in Northern Ireland. Those parties are working out of little more than electoral self-interest and in cahoots with the Secretary of State for Northern Ireland, whose briefing, which was conveyed to Members of this House last week, was so flawed, misleading and bereft of substance as to be offensive.

We are led to believe by the Secretary of State that the Bill, which has been rushed in its entirety through another place in a single sitting and is to be dealt with in your Lordships’ House in a mere two sittings, is not really about any precipitate movement towards the devolution of policing and justice in Northern Ireland; it is simply a means of providing another option in that process for our devolved Assembly.

The Secretary of State for Northern Ireland said in his briefing that the Bill was to reflect agreement between the First Minister and the Deputy First Minister on 18 November 2008, and as taken through the Assembly with cross-community endorsement on 20 January this year after consideration of a report by the Assembly and Executive Review Committee. He went on:

“In that sense, the Bill not only enjoys confidence, but has ‘Made in Northern Ireland’ stamped firmly on it”.—[Official Report, Commons, 4/3/09; col. 856.]

Let me share the real facts with noble Lords. I do not know, nor I suspect does anyone else, exactly what deal was conjured up between Peter Robinson and Martin McGuinness during and subsequent to the irresponsible and disgraceful 150-day moratorium of the Assembly Executive, but I do know that when the letter conveying the Robinson/McGuinness deal to the Assembly and Executive Review Committee was placed before the Executive “to be noted”, at least two Executive members voted against it. For absolute clarity, it is worth adding that there has not been any formal discussion on the devolution of policing and justice, or the methodology to be employed, at the Executive. It is exclusively a deal between Sinn Fein and the DUP in which the Secretary of State for Northern Ireland is complicit, but of which others know virtually nothing.

I am further aware that there was not a unanimous report from the Assembly and Executive Review Committee. At least three review committee members voted against the report. It is a fact that only 51 out of 108 Assembly Members voted in favour—47 per cent of Ulster Unionists and the SDLP voted against and others abstained. Therefore, was the report “made in Northern Ireland”? My answer is hardly so.

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I am, for better or for worse, a committed devolutionist who believes that progress must be built on a firm foundation. That is an objective I share with my party and, I believe, with the SDLP. It is also worth noting that the SDLP voted against the substantive motion last Wednesday in another place, whereas the DUP appears to have voted according to its secret arrangement with Sinn Fein. But my opposition to the precipitate action of the Government in this matter has less to do with politics than with practicalities. It is time to look at the situation with which a still tetchy and suspicious community would have to deal and I ask noble Lords not to be misled by talk of a process that can trundle up to 1 May 2012. It is, I am convinced, part of a deal between the Secretary of State’s office and Sinn Fein that matters can be decided in the five weeks between the European election on 5June and this House going into recess for the summer. Is it not a tactic of this Government to use the recess as a cover for unpleasantness? That is why we are being rushed here today. We can be assured that there is no other justification and I only hope that my words of opposition will frustrate such an irresponsible intention.

What even suggests that the timing for devolution of policing and justice is feasible? We have a chief constable who has just this week concealed from his police board the fact that he sought to mobilise a special intelligence resource because the threat from dissident republicans is so great. I have no problem with such measures and I expect the same level of security as in any other part of the United Kingdom. But I do not expect a conspiracy between the chief constable and the Secretary of State that gives the very people who threaten us publicity, sympathy, status and a raison d’etre. From our brief interaction with the Secretary of State for Northern Ireland last Monday, it is clear that he knows nothing of the psychology of anti-terrorist warfare.

If even the police board cannot be trusted with this level of information, why is it there? Of greater relevance, why, if that is their attitude, would the chief constable and the Secretary of State consider devolving total responsibility to the Assembly? It is time for this House to have straight answers to those questions, and I have sympathy with the Lord President in so far as the Secretary of State for Northern Ireland has dropped her in the unenviable situation of having to justify his inadequacy.

We are being asked to make provision for policing, obviously with the acquiescence of our chief constable, who recently told an All-Party Parliamentary Group on Northern Ireland that I attended how he had such an efficient force that he did not need to know what was happening on a day-to-day basis. For nearly three years he has publicised the threat from dissident republicans like a recruiting sergeant but, by admission, cannot and does not keep a record of their capture and convictions. Can you imagine? This was the chief constable who told us that he had so little police resources that the PSNI might have to cease recruiting; who admitted that he was short of more than 400 detectives; who told us publicly that the PSNI was no longer investigating the £26 million theft from the Northern Bank, the brutal McCartney murder or the Omagh bomb; and who, with the Office of the Director

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of Public Prosecutions, has not succeeded in any of those three trials. We are being asked to prepare to devolve that sort of poisoned chalice.

It is worth noting that, since the DUP/Sinn Fein secret deal in November, almost every question that I have asked about policing has been deemed an “operational matter”, not worthy of a proper answer. On 29 January, in a follow-up Question, I asked how the source of Semtex explosives used by the dissident IRA could be deemed “an operational intelligence matter” and who decided to classify it so, when the information I sought was already known by the police, the Provisional IRA and by dissident IRA activists. I was told that it was the view of the Secretary of State for Northern Ireland that this was an operational matter. Who so advised him? Is it not a contradiction for the chief constable to publicly analyse day after day, week after week, dissident IRA capability without making any apparent inroads against them, while, arbitrarily, the Secretary of State decides that parliamentarians should be kept in the dark?

I know a little about anti-terrorist operations, yet neither the Secretary of State nor the chief constable would ever think it worth asking me to meet them, but I bet that they meet Sinn Fein the moment it crooks its little finger. Therefore, how could I or anyone accede to the terms of this Bill brought before us today under such duplicitous and ill contrived circumstances?

4.12 pm

Lord Mayhew of Twysden: My Lords, it is a privilege to follow the noble Lord, Lord Maginnis, who has devoted his entire public life, in uniform and in politics, to countering sectarianism in Northern Ireland and to furthering an honourable peace there. His speech today will repay careful reading. He will forgive me if I do not propose to follow it today.

Until last Saturday night, 12 years had passed since the most recent murder of a soldier in Northern Ireland. There was some reassurance, so many of us felt, to be had from the fact that that at least was the case. That soldier was young Lance Bombardier Restorick, of the Royal Artillery, murdered by the IRA using a high velocity point 5 bore sniper’s rifle in a carefully planned attack—as carefully planned, I would guess, as last Saturday night’s attack. The calm and constructive courage shown thereafter by his parents remain an especially poignant memory.

Today, I reckon that, for all of us, our discussion of this Bill is overshadowed by the murder of two more soldiers in County Antrim and the wounding of others already referred to, including civilians, by the so-called Real IRA. I say so-called because, to my mind, they are not real Irish people or real republicans, and certainly they are not a real army. There could scarcely exist a more stark contrast between, on the one hand, the motives and methods of the perpetrators of this crime and, on the other, the motives and methods of those leaders whose political agreement has led to the formulation of this Bill. On the one side is the violent and murderous rejection of a future for Northern Ireland based on consent and the rule of law; on the other, the rejection of a future in which the past would

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be endlessly and hopelessly reproduced. There is infinitesimal support, if any at all, for the first, yet there is overwhelming support for the second. As this Bill comes forward, the response to the disgusting crimes of two days ago should be one of steadiness and calm judgment, as well, of course, as one of firm resolve.

That said, my first reaction to this Bill, which I support in general for the reasons that have been given, was one of sympathy with the parliamentary draftsman. It bears all the marks of ministerial instructions of the “hurry, hurry, go faster” type. When these necessitate the copious and piecemeal amendment of complete Acts that have themselves been similarly amended, perhaps more than once, then, for the draftsman, Pelion is indeed piled upon Ossa.

For the same reason, my second reaction—it was second only by a short head—was one of sympathy with all who have to construe and implement the result. The Bill is user-hostile. Its clauses are beguilingly few in number, a mere five, but the devil is in the schedules, which take up 28 pages. Examples of their thicket-like quality abound—I take this instance from page 7, lines 33 to 37:

“After paragraph 12 insert ... ‘13 ... Paragraphs 3(10), 3D(14), 7(10), 11(10) and (11) and 11E(10) of this Schedule shall have effect subject to paragraphs 2 and 3 of Schedule 12A (as those paragraphs are modified at any time by virtue of paragraph 12 of this Schedule)’.”.

I feel that this daunting quality is not the fault of the draftsman; it is the inevitable consequence of the haste with which the Government have required this work to be done; haste which was matched by the time within which they required Parliament to pass this Bill. The timetable simply is not long enough to allow this House at least to do its proper job of scrutiny and revision, valuably though the Bill team has endeavoured with Ministers to help some of us understand the Bill’s provisions and their effect. The Government might well take to heart the reaction of the Select Committee on the Constitution in this House, which reported only a few days ago and whose findings I shall leave to its chairman, my noble friend Lord Goodlad, to relate.

Ministers say that the justification for this haste is the need to keep up the momentum of the devolution process, that momentum will be lost unless, by the summer Recess, the Assembly will have been able to decide what use if any to make of the additional devolution model which the Bill is designed to offer it and what course to take in the light of that decision. They point out that it was only on 18 November last year that the First and Deputy First Ministers reached the highly significant agreement which could be fulfilled only be detailed legislation.

I do not think that that justification stands up. Momentum is not an end in itself. When dealing with a topic as sensitive and controversial as the devolution of policing and criminal justice in Northern Ireland, which has a highly litigious as well as a still-divided society, it would be wiser for the Government to get their legislative tackle reliably in order even at the cost of a couple of extra months. Like patriotism, momentum is not enough, and I add my protest to those that have been made both here and in the other place.

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We are nevertheless where we are, however reluctantly. Having served in my time as both the Attorney-General for Northern Ireland and then Secretary of State, I am driven to focus on the Bill’s provisions for the relationship between the Attorney-General for Northern Ireland and the DPP for Northern Ireland.

For my part, I have always been a convinced upholder of the merits of the structure that operates in this country. The Attorney-General has a statutory duty to superintend the DPP, whom she appoints, and over whom she has a power of direction—a power that I believe not to have been exercised in modern times but which remains available. That arrangement has been on the statute book since the 1880s and continues to work very well. The prime reason for my support for it has lain in the fact that Parliament will on occasion want to examine a particular prosecuting decision or event, and that rightly it will consider itself entitled to a degree of fair accountability. Similarly, it may be right—I have personal experience of this—for the Attorney-General to go before the House of Commons, or the House of Lords, and explain why a particular action has taken place, why it has occurred and to set the record straight.

Parliament will not be satisfied with the attendance of a mere messenger; it will require to hear from the person with whom ultimate responsibility lies. That person should accordingly be a Member of one House or the other and have the right of audience. Merely being questioned as a witness, which will be possible under the Bill’s arrangements, is not the same, nor is it enough. Given the general acceptance of the fundamentally important convention that the Attorney-General acts quasi-judicially, this has always seemed to be the best practicable arrangement. I believe that it served equally well in Northern Ireland under direct rule.

Devolution in Northern Ireland inevitably can be expected to bring to the fore suspicions and assertions of political bias in prosecutorial decisions. Such is the invasive character of the prosecuting arm of the state that it is highly important to protect the DPP as far as practicable from these suspicions and from the attacks that will foreseeably be based on them. These suspicions can expect to be further fed if the Attorney-General for Northern Ireland is appointed politically by the First Minister and Deputy First Minister jointly, as is provided for by the 2002 Act.

The criminal justice review, to which that Act gave effect, took the view that the atmosphere in Northern Ireland was so highly charged that the DPP should be made wholly independent of ministerial supervision. At that difficult time for Northern Ireland I agreed with that, albeit reluctantly given my strong support for what works so well in England and Wales, and which I continue to believe is the ideal. Accountability remains of huge importance, as does public confidence in the system. Since 2002 we have seen the passage of seven years, which has been a generally positive period in which significant political progress towards devolution and peace has been made. In these differing circumstances today, I am inclined to believe that if the Attorney-General were to be appointed by the Judicial Appointments Commission, or rather recommended by the commission and appointed thereafter as a matter of convention by

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the Lord Chief Justice, and supervision were restored, suspicions of bias would be significantly abated. Accordingly, if my noble friends were to move such an amendment, I could see the point of that and would think it entirely justifiable. It comes down to a question of judgment concerning the atmosphere in Northern Ireland today. Either way, I shall be content to support the Bill which does not deliver devolution of criminal justice and policing but usefully offers further paving along the way.

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