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The noble Lord, Lord Morrow, is correct to say that for unionists this has been a long-held and cherished ambition. The problem is that it may be one of many unwise features of unionist political thought in the 20th century. It may be one of the less fortunate, less attractive or less intelligent aspects of thinking about politics that characterises Ulster Unionism. It is certainly the case that throughout the 1970s and 1980s and well into the 1990s, British Governments of both parties conventionally regarded the concept of devolution of policing and justice with special fear, concern and nervousness—quite rightly in my opinion.

I wish to burden the House with an anecdote. In 1998 it was my wont to wander in and out of television studios in advocacy of the Good Friday agreement. After one such debate in which, as the noble Baroness, Lady Royall, has pointed out, the fact that the agreement of 1998 makes provision in principle for the devolution

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of policing and justice had come up, I had said during the debate that this was a matter for a long time in the future. I received a call as I left the television studios congratulating me on saying this. The call was from the office of the then Secretary of State, Dr Marjorie Mowlam, and the person at the other end of the line said to me, “Not for 20 years”.

It is not 20 years since 1998—we have moved remarkably quickly on this issue. Let me remind the House that in 1998 the assumption of my caller and of the Good Friday agreement was that the decommissioning of illegal weaponry would be completed by 2000. In actual fact, what was supposed to take two years took at least seven. We must realise that, even though it is quite right for the Government to say that they had a busy time with the St Andrews agreement and that devolution would occur by 2008 and it has not done so, we are still, in broad terms, moving remarkably quickly across some very difficult and fraught terrain.

The row over the weekend does not encourage the view that Northern Ireland is mature enough yet for the devolution of policing and justice. I know it is argued that the immaturity of current debate will disappear once the responsibility is devolved. However, very deep divisions have emerged. They emerged over the chief constable’s decision to employ special forces even before the murders. The debate that has occurred since the murders does not encourage us to think that there is yet the kind of political culture in place which could operate effectively any devolution of policing and justice.

The House has been much concerned about the issue of haste. Many noble Lords have commented that the haste has been indecent and have asked why. There is a very simple answer. The perception in the Government was that the president of Sinn Fein needed something that could be presented as a political victory or a political gain with the European elections just around the corner. I am not sure that we are close to the devolution of policing and justice but at least this is something the Government could offer—the fact that it had been pressed through these Houses so quickly. The very indignation expressed in both Houses is almost a part of the package.

Let me expand on that point. We are coming to the end of a style of dealing with the peace process. The assumption of government has been that at all times we must allow Sinn Fein to believe that there is further progress along the line which can be delivered and something more that can be presented. At no point do we present a closed door; the assumption is that this is dangerous. It is, by the way, not an unreasonable assumption of government. It is part of the reason why we have had so much success up to this point.

The trouble is that we are now running out of rope; we are running out of things that can be offered in the process. We may have reached the point where we have to speak truth unto power—in this case, the power being the president of Sinn Fein. Two things must occur here: we must be fair and we must recognise and take seriously the nature of Irish republican political philosophy. We cannot afford to disregard this as casually as we sometimes do and make it into something that in our own minds we would prefer that it was.

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Over the weekend, there was a very concerning turn in the debate. It occurred in relation to Sinn Fein mercifully saying that it supported the police apprehending the murderers at the weekend. None the less, Sinn Fein leaders were heard to say, about securocrats and the role of our intelligence services, that they were, as it were, as bad as the dissidents, that the two fed off each other, that they needed each other, that the two groups were locked into a conflict—that they were morally on the same level—but that some process was at stake: a process by which parts of the British establishment did not accept the Good Friday agreement. During my time in this House—if this House may be considered to be part of the British establishment—I have never heard one person express anything other than support for the Good Friday agreement. Some have expressed their concerns about the moral costs of that process but I have not heard in this particular sanctum one word uttered in a serious attempt to revise it or reverse it. That is what I mean by speaking truth unto power. We should send that message to Sinn Fein. We should not be prepared to allow our intelligence services to be dismissed as securocrats. I know that it is fashionable to be immensely neurotic about the security state at present but we should say clearly that there is a major problem in Northern Ireland—the murders on Saturday night are proof of that—and that we support the work of our intelligence services in trying to prevent similar outbreaks.

That is why I support the noble Viscount, Lord Brookeborough, who asked the Minister to define national security as it applies to Northern Ireland. This is a central question in relation to the devolution of policing and justice: it is one of the most difficult matters. We hear, rightly or wrongly, that 15 per cent of our security and intelligence services’ activities at the moment are directed towards the dissident republican threat. That is a remarkably high percentage, given the scale of the other threats that the United Kingdom currently faces. It is therefore vital that when the new arrangements come in, it should be clear what the place of national security concerns and of our intelligence services are with respect to the other institutions, including the devolved institutions of policing and justice in Northern Ireland. I therefore fully support the request of the noble Viscount for clarification on that.

Finally, in the other place, some concerns about the Bill were dismissed on the ground that the Northern Ireland Assembly had already discussed them. We must respect the political realities of this process—we have, in effect, to support the Bill—but we do not have to accept the Northern Ireland Assembly as some type of intellectual gold standard before which we bow. If the Northern Ireland Assembly dismissed the matter, that does not mean that we should not discuss it. That is why I am particularly grateful to the noble and learned Lord, Lord Mayhew, who raised issues about the future role of the DPP and the Attorney-General under this new dispensation. It is perfectly true that the Northern Ireland Assembly was not much troubled by that question but it is the sort of thing that we should discuss in Committee.

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5.04 pm

Baroness Harris of Richmond: My Lords, each and every Member of this House has made stark reference to the appalling events of Saturday night at Massereene barracks in Antrim. The people of Northern Ireland had hoped that murders such as these were a thing of the past. It is shocking that the perpetrators feel that they can derail the peace process by killing and maiming innocent people. We call on anyone who has any knowledge of who is responsible for this outrage—they are members of a proscribed organisation—to give information immediately to the police, so that the perpetrators can be brought to justice. I echo all noble Lords who have spoken of their anger and who have offered their deep sympathy to the families and friends of the two soldiers who were murdered and to the soldiers and civilians who were wounded, some seriously. We, too, thank the noble Baroness the Lord President and the officials in the Bill team who have attempted to explain this legislation.

Opening the Second Reading debate in the other place, the Secretary of State said:

“The Bill will provide an essential stepping stone to the completion of devolution, and it is a tribute to those in Northern Ireland whose political leadership and commitment has turned the peace process into an enduring political process. That political progress has been and continues to be significant, and it is essential that the momentum is maintained”.—[Official Report, 4/3/09; col. 886.]

I agree with those sentiments entirely. However, the speed with which we have been forced to consider this important and highly complex legislation, which the noble Lord, Lord Glentoran, condemned, has been admirably referred to by many noble Lords, especially by my noble friend Lord Smith of Clifton, and also, graphically, by the noble and learned Lord, Lord Mayhew of Twysden, and the noble Lord, Lord Goodlad, who reminded us of the Constitution Committee’s report that considered this Bill. The noble Lord, Lord Goodlad, felt that the Bill could in no way be considered to be emergency legislation. The noble Baroness, Lady O’Neill, pointed out that we could have had ample time since November to consider these measures, and that momentum provided no reason for haste.

On 18 November 2008, the Secretary of State welcomed the agreement between the First Minister and Deputy First Minister that set out an agreed process for devolving policing and justice in the Northern Ireland Assembly. He said:

“The Bill does not provide for when devolution will happen, nor does it provide for what is to devolve—both of these still require further consideration by the parties and ultimately by Parliament”.

The noble Lord, Lord Morrow, who unfortunately is not in his seat, reminded us of this.

How many more times must we come together to consider further legislation along this path? This is the eight piece of legislation covering the move towards devolution of policing and justice in Northern Ireland. Will the Minister guarantee that when there is further legislation to consider, it will not be presented to this House in a rushed and inappropriate way?

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When I spoke in the debates on the humble Address following the gracious Speech presented by Her Majesty to Parliament in December, I anticipated a Bill of this kind. I spoke of the challenges that would face a Minister of Justice in Northern Ireland, and those challenges have not changed. They were spoken of again today, as my noble friend has reminded us. I also spoke of the positive effect that such a transfer of power would have. While a number of measures have been put in place already to provide for greater transparency and accountability in operational matters in Northern Ireland, and better performance in criminal justice and policing, the formal devolution to the Assembly will create the cross-community ownership of resourcing and policy matters. There will be enhanced opportunities for joined-up government.

On resourcing, in his Second Reading speech in another place, again on 4 March, the Northern Ireland First Minister and Member of Parliament for Belfast East said:

He added:

“There is no sense in Northern Ireland’s Assembly having responsibility for policing and justice if it does not have the resources to do the job. It is therefore vital that the Government divvy up in this regard”.—[Official Report, Commons, 4/3/09; col. 912.]

After the appalling circumstances of Saturday night, now is probably the right time for the Government to answer that question.

For as many years as I have been involved in policing and asked questions in this House about the adequacy of resourcing the Police Service of Northern Ireland, I have been assured that the chief constable has all the resources he needs. Clearly, that now needs to be looked at again in the light of this recent atrocity. The noble Lord, Lord Glentoran, referred to the imminent retirement of the chief constable and the debt or lack of £50 million in the policing budget. He felt that that was unacceptable and extremely worrying. The noble Lord, Lord Maginnis of Drumglass, also commented strongly on the lack of resources, to which the chief constable has referred.

We do not get soldiers murdered in England and Wales and they should not be murdered in Northern Ireland, so will the Minister assure the chief constable that he will receive whatever extra resources he needs to ensure that these people are caught? Will he also clarify the national security issues referred to by the noble Viscount, Lord Brookeborough, and the noble Lord, Lord Bew, who also referred to the dangers in security in Northern Ireland? The Northern Ireland First Minister seeks assurance on funding generally and so do I.

Criminal justice matters do not reside within a neat silo. There are some obvious opportunities for any future Minister in working with other departments. Today, my noble friend has restated the commitment on these Benches to the principle of the devolution of justice and policing matters to the Assembly. I therefore share my noble friend's regret that Schedule 1 to the Bill causes us such great difficulties, for the reasons he has set out.

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Given the context of policing in Northern Ireland, it is desperately important that we get this legislation right. I urge the noble Baroness to consider seriously the amendments which we will bring forward in Committee as a genuine attempt to provide proper safeguards for such a vital department.

5.12 pm

Lord Kingsland: My Lords, I echo the remarks made by all noble Lords about the murders on Saturday night, which were as merciless as they were cowardly.

Listening to all noble Lords, I have been very powerfully struck by the degree of unanimity around the House on devolution. Every single contributor has, directly or by implication, spoken of the desire to reinforce the durability of devolution and the debate has taken place in that spirit. The noble Lord, Lord Bew, helped us all when he said that we should not be timid about suggesting amendments to the Bill because, if we believe that the Bill will be improved by them, we have a duty to bring them forward.

The Bill is an amendment to the UK constitution and we sit in—I was about to say the most important Parliament in the United Kingdom—the Parliament which is sovereign in the United Kingdom. It is extremely important to keep at the front of our minds our duties towards the constitution; and to ensure that any amendments are responsible and improve the way in which our nation is governed. That is why I valued enormously the contribution by my noble friend Lord Goodlad.

In their speeches, many noble Lords also regretted the fact that this is emergency legislation. Of course, most Northern Ireland legislation that has come before your Lordships' House in recent years has been emergency legislation; and the reason for that is not hard to discern. The reason is that such legislation, typically, follows negotiated deals between the principal political parties; and there is a fear in the Government that, if it is not swiftly enshrined in statute, the deal will disappear almost before our eyes. So I understand the dilemma the Government face; but the interests of enduring devolution in Northern Ireland are not best served by this conduct. We have to take the risk that certain elements of deals will fall by the wayside for the greater benefit of getting the best devolution settlement we can for the UK constitution. That is not just a matter for those in Northern Ireland; it is a matter for us all.

I have two examples of what I have just said. The first is the situation of High Court judges in Northern Ireland. One of the unsatisfactory results of the devolution negotiations is that, once it takes place, there will be two sorts of High Court judges in the United Kingdom: those for England, Wales and Scotland and those appointed in Northern Ireland before devolution, all of whom can be dismissed only by a vote by both Houses of Parliament; and High Court judges in Northern Ireland appointed after devolution, who will not enjoy that protection.

However, I am pleased to see that, in the Bill, the Government have improved the situation in one important way for that class of High Court judges with respect to Sections 5 and 7 of the 2002 Act. Under those sections,

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the First and Deputy First Ministers of Northern Ireland have a crucial role to play in whether appointment or dismissal takes place. I am thankful that, in this Bill, the Government have replaced those parties by the Lord Chief Justice of Northern Ireland. I regard that as exceedingly beneficial, and I congratulate the Government on making that change.

As the noble Baroness the Lord President and the noble and learned Baroness the Attorney-General are aware, I am much less happy about the relationship between the Attorney-General for Northern Ireland and the DPP in Northern Ireland, as envisaged following devolution. Under Section 42 of the 2002 Act:

“The functions of the Director shall be exercised by him independently of any other person”.

The problem about that section is that the DPP will not have the protection of a superintending Attorney-General, as the DPP has in England and Scotland. The result is that if the DPP is accused of political bias in instituting, or refusing to institute, a prosecution, as he inevitably will be from time to time, he will not be able to have his position defended in the Assembly in Northern Ireland by the Northern Ireland Attorney-General; and the DPP himself will have no right to go to the Assembly and defend himself.

The reason for this—one can see how he came to be placed in this position—is that, under the devolution arrangements, the Attorney-General in Northern Ireland is a purely political figure; he is selected solely by the First Minister and the Deputy First Minister. That selection is not even endorsed by the Assembly. So he does not have the quasi-judicial role, above and beyond politics, which the noble and learned Baroness, Lady Scotland, has, in the United Kingdom jurisdiction. That is why we have tabled our amendment on the Attorney-General.

The amendment seeks to give the Attorney-General for Northern Ireland a quasi-judicial role by appointing him in exactly the same way in which a High Court judge is appointed post-devolution. From that procedure, which would endow him with quasi-judicial powers, flows the second part of our amendment, which would give him superintendence powers over the Northern Ireland DPP, thereby providing that party with the necessary constitutional protection.

The Lord President very kindly applied herself to the amendment and made three points which I particularly want to question. First, she said that the arrangements in the 2002 Act were really a function of the circumstances of the time: that is to say, the Judicial Review, completed in 2000 and published in 2002. Will she be kind enough to explain what she thought the circumstances of the time were, and why, having done that, she thinks that they necessitated the arrangement that appeared in the 2002 Act? My noble and learned friend Lord Mayhew addressed that point, with his characteristic acuity, and observed, at the end of this phase of his remarks, that 2002 was now, and certainly in Northern Ireland political terms, a long way away. As he put it, characteristically modestly, it could well be said that the circumstances had changed to allow us, now, to give the kind of protection which the DPP needs in the circumstances of devolution in which he will operate.

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The Lord President’s second observation was that the Attorney-General should not be a political figure. However, with great respect, the Attorney-General will be a political figure in Northern Ireland because of the way in which he is chosen. The situation is exacerbated by the fact that it is the Attorney-General, as a political figure, who chooses the DPP, thereby compounding—I use the following word metaphorically—the felony.

Thirdly, the Lord President observed that the solution that we were adopting and advancing breached the separation of powers, because the Lord Chief Justice of Northern Ireland would have a veto over the appointment of the Attorney-General by the Appointments Commission. With great respect, that observation was misconceived. What greater breach of the separation of powers could there be than a political Attorney-General appointing a DPP who had quasi-judicial prosecutorial powers in the jurisdiction?

Having proposed and defended our amendment, I should say that, although I will speak to it again on Wednesday I do not propose to put it to a vote; partly because I hope that the Government will be so convinced by the power of the argument that they will amend the Bill, and partly because, perhaps more importantly in the present circumstances, we know that the first and second Ministers have already agreed on an Attorney-General for Northern Ireland through the political process. A few days ago, the noble and learned Baroness, Lady Scotland, was kind enough to talk to me about this matter and I can see that voting could produce a difficult situation during a time which has been made even more sensitive by the tragedies of Saturday night. For that reason, too, I do not propose to put my amendment to the vote but—some of your Lordships may be disappointed to hear—I will say a few more words in Committee.

5.25 pm

Baroness Royall of Blaisdon: My Lords, I am grateful to all noble Lords who have participated in this Second Reading debate. It is always interesting to hear the insightful and constructive contributions of noble Lords in relation to Northern Ireland. Many of these issues are of extreme importance and we, the Government, as well as Members in this House, can learn greatly from that expertise and vast experience.

In my opening comments I referred to the reduced timeframe in which this Government have had to consider the legislation. It is clear that all noble Lords are concerned and feel extremely strongly about this issue. But, as I stated at the beginning of this debate, the reduced timetable is not for the convenience of the Government but simply to ensure that the necessary legislative framework is in place to allow the Assembly to progress with the devolution of policing and justice at a pace determined by themselves. This is complex legislation and more time for scrutiny would be welcome.

However, we have to ensure that the momentum is upheld. I note the views expressed by the noble Baroness, Lady O’Neill, that momentum does not necessarily mean haste. I also agree with her that it is regrettable that, for all the obvious reasons, we have spent too much time this afternoon discussing the time allowed

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rather than scrutinising much more important elements of the Bill. However, I must stress that the timetable has not been dictated by any deal, either before or behind closed doors. There is no deal. The speed with which we are dealing with this legislation does not have anything to do with the European elections. Nor, I must stress, is it a carrot to Sinn Fein.

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