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To amend the Bill in the way proposed by the noble Lord, Lord Maginnis, would create an inconsistency between the model set out here and the arrangements that Parliament has already put in place for existing models. I would draw the noble Lord’s attention to Section 18(7) of the Northern Ireland Act 1998 and to paragraphs 3(7), 7(7), 11(7) and 11F(1) of Schedule 4A to that Act. It is important that the Assembly should have no less flexibility to appoint a justice Minister under this model than under any of the others. In response to the noble Lord’s suggestion that, if the First Minister and Deputy First Minister were to be nominated as justice Minister they would have a veto over their own removal, that is not necessarily the case. On current Assembly arithmetic, the DUP or Sinn Fein would be required to carry a cross-community vote. However, that arithmetic would not always be the same. Given that the DUP and Sinn Fein have committed to not nominating the justice Minister until after 2012, the Government believe that the noble Lord’s concerns are misplaced. I therefore ask him not to press his amendment.

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Amendment 4A would make it possible for the Assembly to remove the justice Minister on a straight majority vote, dispensing with the need for cross-community support. The requirement of cross-community support for the removal of the justice Minister was recommendation 11 of the AERC report, approved by the Assembly on 20 January. Not only would I advise caution to the Committee before unpicking arrangements which already have support across the Assembly and will fall to them to implement, but this amendment goes beyond the spirit of the Belfast agreement. The agreement sets out the principle of taking key decisions within the Assembly on a cross-community basis which it defined as either parallel consent, as is provided by the Bill, or a weighted majority; namely, 60 per cent of members present and voting, including at least 40 per cent of the nationalist and unionist designations present and voting. It would be hard to argue that the removal of a justice Minister could not be construed as a key decision of the Assembly. For those reasons, the Government do not agree with this amendment.

Amendment 5A would remove the roles of the First and Deputy First Minister in removing the justice Minister. This would mean that removal could be brought about only by a Motion supported by a minimum of 30 MLAs, which would then need to be passed by the Assembly on a cross-community basis. The provisions included in the Bill for the removal of the justice Minister replicate the arrangements put in place and approved by Parliament in the Northern Ireland Act 1998 for the exclusion of a Minister under Section 35. Given that the arrangements are suitable in that scenario, the Government consider that they should also be suitable here. Again, I hope that the noble Lord will withdraw his amendment.

4.30 pm

Lord Maginnis of Drumglass: Would the Minister confirm, first, that when the proposal of the First and Deputy First Minister was brought to the Executive and they were asked to officially note it, there was not unanimity; secondly, that when the review committee of the Assembly and the Executive brought forth its report, it was not unanimous; and, thirdly, that the Ulster Unionist Party and the SDLP voted against the report in the Assembly?

Could I also ask the noble Baroness to clarify another point? It appears that no provision is made in the legislation for a situation where more than one nomination is made in the Assembly. A single member can nominate the Minister, but what if a party decides, because it disapproves of the process, that each of its members will nominate someone to be Minister? I do not believe that there is any provision within the Bill for simultaneous nominations.

Baroness Royall of Blaisdon: The discussions in the Executive are private, and I do not know what the voting was. The vote in the Assembly was not unanimous. I believe that the SDLP did not vote against the proposal in the Assembly, but, as I understand it, the Ulster Unionists did. That is democracy is action.

In response to the noble Lord’s question, I refer him to new Section 3D(6), which states:

“Once one member has been nominated, no further nominations may be made unless and until sub-paragraph (7) applies”.

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Sub-paragraph (7) states:


(a) the nomination does not take effect within a period specified in standing orders, or

(b) the nominated person does not take up the office for which the person has been nominated within that period,

I hope that that clarifies the position.

Lord Maginnis of Drumglass: I am grateful to the Lord President of the Council. Obviously it has been important that I have been able to air and forewarn noble Lords about the implications of this Bill as it will affect what happens on the ground in Northern Ireland, as it will affect the functioning of the Assembly and as it will affect justice and policing. Having done that, I feel that I have done my duty. I am neither competent to nor do I desire to cross swords with noble and learned Lords who are much more aware of the implications than I am. I beg leave to withdraw the amendment.

Amendment 1A withdrawn.

Amendments 1B and 1C not moved.

Amendment 2

Moved by Lord Smith of Clifton

2: Schedule 1, page 6, line 21, at end insert “, and

(d) where the member nominated was a member of a party at the time he took his seat in the Assembly, a majority of the members of that party voting.”

Lord Smith of Clifton: I will also speak to Amendments 4 and 5. The amendments are partially inspired by the arguments made by the honourable Member for Foyle in Committee in the other place. As Mr Durkan accepted, there is nothing in the Bill to protect a Minister of Justice from being ousted from office on a somewhat capricious basis. In the Commons, the SDLP proposed that the nominating officer of a political party should be involved in the appointment and removal of the Minister. We saw a lot of merit in that proposal but we were worried about what would happen if the nominating officer was in fact the Minister himself. There may be circumstances where he might not agree to remove himself from office even if that was the will of his own party. Therefore, we have tabled amendments to provide for an extra component in the cross-community vote.

Amendments 2 and 5 provide that a Minister of justice has to be appointed and removed by 50 per cent of the unionists voting, 50 per cent of the nationalists voting, 50 per cent of the Assembly voting, and the majority of the members of the Minister’s party voting. We believe that these amendments provide the Minister of justice with a degree of security while maintaining the right of the Assembly to remove him from his post. It also provides the synchronisation between the appointment and removal which the Government are keen to maintain. This is a fairly modest amendment and we urge the Government to accept it. As I said at Second Reading, we believe that the Minister of justice is a special Minister in circumstances which are particularly fraught at the present time.

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I will now address Amendment 4. The Liberal Democrats tabled this amendment in the other place and we made representation to the Minister, Mr Paul Goggins, at our meetings last week. The amendment takes inspiration from the Police (Northern Ireland) Act 2000 which allows the Secretary of State to remove a political or independent member from the Policing Board if he has been convicted of a criminal offence since his appointment, if he has become bankrupt, if he is not committed to non-violent and exclusively peaceful and democratic means, or if he is unable or unfit to discharge his functions. We believe that putting such a qualification into the Bill would prevent vexatious attempts by Members of the Assembly to remove a Minister of justice from office. The Assembly would need to resolve that a Minister filled one of the four criteria listed in the amendment before they could remove him. This gives a Minister of justice more protection than is afforded in the Bill as it stands. As we know from our daily experience in this place, Justice Ministers and Home Secretaries are often called on to make difficult decisions that, in an ideal world, they would choose not to make. They make these decisions because they are in a secure position and because they have to. If a justice Minister is vulnerable to a populist movement within the Assembly, he might not be able to make the difficult decisions required of a justice Minister. The amendment would ensure that the Assembly still has the right to remove the Minister of justice from office, but it would give him protection in that he could not be removed for frivolous or populist reasons but only for serious reasons of grave misdoings. I beg to move.

Baroness Harris of Richmond: I will speak to Amendments 6 and 10 in this group. Amendment 6 is another modest amendment. It was moved in the other place and it is an attempt to limit the possibility of vexatious Motions being tabled by Members of the Assembly. It gives the Assembly the ability to set out in Standing Orders a limit on the number of times a Motion to remove a Minister can be made during a specific period of time, again to be specified in Standing Orders. Westminster is simply giving the Assembly the ability to address this problem in its own Standing Orders. The amendment does not specify a limit or a time frame; it respects the remit of the Assembly to determine its own business. We are not prescribing how the Assembly should operate; we are merely giving it an option which it may wish to use.

Lord Ashdown of Norton-sub-Hamdon: I declare an interest: I am, as the Government know, doing work in Northern Ireland on their behalf in seeking to reach an accommodation between the various sections of the Northern Ireland community on the issue of parades in the long term.

I listened to the Minister’s response in the debate earlier this week on the issue raised by my noble friend Lord Smith of Clifton in Amendments 2 and 5. I was disappointed and concerned to hear the Minister’s defence as to why he did not wish to respond to the substance of the two amendments. As I recall it, the Minister said that this safeguard was built into the Good Friday agreement so that there would be a

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counter-balance of veto between the nationalist and the unionist sides. But surely we have moved beyond the conditions of the Good Friday agreement—we would not have this legislation before us if we had not—into a rather more mature situation in Northern Ireland, where those who determine what goes on are not only those representing the nationalist and unionist sides but also others who declare themselves on neither side. Surely that is what we wish to see grow.

Future Ministers of justice very likely may come from the Alliance Party of Northern Ireland, which does not declare itself as part of the nationalist or unionist side but sees itself as representing all of Northern Ireland and what you might call the broader civil society of Northern Ireland which we would wish to see established. It is curious, therefore, that the Government are proposing that we should allow such Ministers of justice to be dismissed by what would basically be a vote of the two sectarian parties of Northern Ireland. That would be folly. It also does not respond to the conditions we see developing in Northern Ireland, thanks in large measure to this Government’s courageous moves, and that is not wise. It does not respond to the present circumstances.

It was right in the context of the Good Friday agreement that we should ignore this third quotient of Northern Ireland; that in order to prevent and stop the Troubles we should place this counterbalancing power in the hands of those who see themselves as representing either the nationalists or the loyalists. That was right for that moment, but surely it is not right for this moment. It was right for that moment that those who regarded themselves as being out of the nationalist/loyalist division should be essentially weightless, but surely they should not be weightless now. To allow a justice Minister, who for very good reasons will probably come from a party that is neither nationalist nor loyalist, to be dismissed by a conspiracy between the nationalists and loyalists who dominate is folly of the highest order.

Imagine a situation where you have a justice Minister from the Alliance Party presiding over a corruption investigation into the Executive, made up necessarily of both nationalists and loyalists. Under these provisions, it would be open to both of those parties to dismiss the justice Minister without it having anything to do with the preservation of the ethnic balance of Northern Ireland but simply because it was politically convenient to do so. Is that the kind of circumstance the Government wish to promote? This provision is like asking a domestic cat to preside over the administration of justice between two tigers on the basis that the tigers have an absolute right to eat it whenever they conclude it is convenient to do so. Who would take such a job under such provisions? More importantly, who could do a good job, in those circumstances, under such provisions? This is not to respond to the movement made by Northern Ireland, to the present climate or to the requirement to bring in others into the Government of Ireland—not just nationalists and loyalists. It is absolutely not to respond to creating appropriate conditions in which a Minister of justice could do their job effectively.

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4.45 pm

Lord Maginnis of Drumglass: I apologise for having to take the noble Lord to task, but with his experience in Northern Ireland, I would have thought that he would have got the nomenclature correct. He has referred again and again to nationalists and loyalists. I am offended by being called a loyalist. I have never been a loyalist, nor have members of my party been loyalists. We are unionists and have a right to be referred to as unionists. I am disappointed. I thought the noble Lord would have known better.

Lord Ashdown of Norton-sub-Hamdon: I accept the noble Lord’s admonition. He is entirely correct and I apologise to him, his party and any others I may have inadvertently offended. However, while my expression may have been inelegant—and again I apologise to the House and to noble Lords for it—that does not subtract in any way from the substance of what I have been saying.

I ask the Government to think again. It seems unwise to put a Minister of justice, who comes from outside that division, into a position where they could be dismissed, for reasons that are nothing to do with the preservation of the balances in Northern Ireland and nothing to do with putting them in that position. This seems unwise and inappropriate and I hope the Government will think again.

Lord Maginnis of Drumglass: The noble Lord made a convincing argument, but there is an exception and it was enshrined in the way that he presented his case. There is a party called the SDLP. There is a party called the Ulster Unionist Party. Neither is sectarian. Neither wants to be associated, by the noble Lord or by anyone else, in sectarian terms. If he decides that he can pick out the Alliance Party of Northern Ireland as the one non-sectarian party, he errs.

I cannot sit in your Lordships’ House and allow that misunderstanding to be stated again and again—to be underlined—because it is not true. Many in Northern Ireland have a huge desire—not least those of us who negotiated at the coalface of the Belfast agreement—for a non-sectarian, pluralist society within Northern Ireland. Hence to suggest that provision is made within this Bill to facilitate one small party that will simply be the buffer between Sinn Fein and the DUP, appears to be an act of folly.

Lord Glentoran: The noble Lord, Lord Ashdown, will see that on page 6, subsection (11) states:

“The relevant Minister shall cease to hold office if—

the Minister resigns by notice in writing to the First Minister and the deputy First Minister,

(b) the Minister ceases to be a member of the Assembly otherwise than by virtue of a dissolution, or

(c) the Assembly resolves that the Minister is to cease to hold office”.

There is nothing about the First Minister or the Deputy First Minister doing a deal to get rid of the Minister; it is the Assembly which decides.

Lord Browne of Belmont: The removal of the Justice Minister was discussed before legislation was published. It is important that arrangements are in place to enable the Justice Minister to be removed, although they are unlikely to be triggered during the interim

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period. Even with the existing provision, the Justice Minister could still be removed through the normal exclusion procedure or through a Section 17(1) resolution rearranging departments. It is important that some removal power is in place apart from the normal provisions because it is consistent, first, with the letters of the First Minister and the Deputy First Minister. It is also important that there is consistency between appointment and removal. I would point out that permitting a removal of the Justice Minister by a cross-community vote is entirely consistent in that it mirrors the manner of the appointment of that Justice Minister. This power again is highly unlikely to be used and other departmental models already provide for analogous arrangements for removal by those who appointed.

Lord Ashdown of Norton-sub-Hamdon: Perhaps I may respond to the noble Lord, Lord Glentoran. He drew our attention to subparagraph (11) on page 6 and accurately described what is there. If he looks a little further, he will see that a,

of the above paragraph,

and then he sees a majority of the Members of the Assembly,

The purpose of the amendment tabled by my noble friend Lord Smith of Clifton was simply to add to that a majority of the party from which the Justice Minister was drawn. To vote otherwise would really leave this entirely in the hands of those who would be able to describe themselves as either nationalists or unionists. That would not include, for instance, in the case that I raised earlier, Members from the Alliance Party and indeed other political parties that did not see themselves as sectarian in nature.

Baroness Royall of Blaisdon: In the previous group of amendments, we looked briefly at the arrangements for the nomination and removal of the Justice Minister. The Government wholeheartedly agree that the Justice Minister is extremely important and we understand that concerns about the arrangements exist, but we continue to believe that the arrangements provided for in the Bill are appropriate. Therefore, we are not able to support the amendments under deliberation.

Amendments 2 and 5 would require, in addition to cross-community support, the support of the majority of the Justice Minister’s party before he or she could be appointed or removed from office. The Assembly and Executive Review Committee dealt explicitly with the question of how the Assembly should approve the appointment and removal of the Justice Minister. Recommendations 10 and 11 make it clear that appointment and removal would require a cross-community vote and specify that it should be a parallel consent vote requiring a majority of designated nationalists and a majority of designated unionists as well as an overall majority.

The Government agree that the justice portfolio is special and may require different treatment from the other ministerial portfolios. That is why we have provided

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for a series of alternative models for the structure of a justice department. However, as I explained at Second Reading, we do not accept that cross-community votes are, to use the noble Lord’s words, simple or routine. The principle of taking key decisions within the Assembly on a cross-community basis was one of the safeguards set out in the Belfast agreement of 1998. We have moved a long way since that agreement. I heard the arguments expressed forcefully by the noble Lord, Lord Ashdown, but I do not believe that today is the time or the place to start a re-examination or unpicking of the Belfast agreement by the addition of further layers of protection to the definition of cross-community support.

The Belfast agreement defined cross-community support as either parallel consent, which we are discussing here, or a weighted majority—that is, 60 per cent of Members present and voting, including at least 40 per cent of the designated nationalists and unionists present and voting. The safeguard was designed to meet the particular circumstances of Northern Ireland, given its difficult history, and it was intended to apply in relation to key decisions, not to all routine matters. The appointment and removal of a Justice Minister could certainly be characterised as such a key decision.

While I understand that the noble Lord, Lord Smith, and the noble Baroness, Lady Harris, are keen to ensure the most stable framework possible for an incoming Justice Minister, I suggest that the best way of providing for that is to put in place the framework recommended by the people who will be operating within it.

Amendment 4, again tabled by noble Lords from the Liberal Democrat Benches, sets out criteria that would need to be met before a motion could be tabled to call for the removal of the Justice Minister. Again, I understand the desire of those who have tabled this amendment to head off any suggestion that the Justice Minister could be removed at the whim, as it were, of the two largest parties. However, for the reasons that I have set out, the Government believe that a cross-community vote—in particular, the requirement for parallel consent, or 50:50:50—is sufficient to safeguard the power from being used trivially or malignly. I am grateful to the noble Lord, Lord Glentoran, for drawing our attention to page 6, sub-paragraph (11).

The belief that I mentioned was strengthened by the words of the Northern Ireland First Minister, speaking as the right honourable Member for Belfast East during the debate on this Bill last week in another place. I referred to them at Second Reading, but they are worth repeating because, in the Government’s view, they clearly illustrate the commitment of both the First and Deputy First Ministers to making the framework workable. The right honourable Member said:

“Neither the First nor the Deputy First Minister will wish to do anything other than give ... 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”.—[Official Report, Commons, 4/3/09; cols. 940-41.]

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