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The Government believe that those words clearly indicate that there is no intention on the part of the two largest parties in the Assembly to misuse the power to remove a Justice Minister from office.

11 Mar 2009 : Column 1193

Amendment 6 proposes that Assembly standing orders might limit the number of removal motions that could be brought against the Justice Minister in a given period. As I have set out, the Government recognise the concern that the noble Baroness expressed, which is that the power to seek removal of the Justice Minister could be used vexatiously. That is why, at line 5 on page 7, we propose to restrict the circumstances in which such a motion can be tabled in new paragraph 3D(13) of Schedule 4A to the 1998 Act. Any motion would require the support of 30 or more Members of the Assembly, or to have been tabled by the First and Deputy First Ministers acting jointly. These filters replicate those used for exclusion motions under Section 30 of the 1998 Act, and the safeguards that the Belfast agreement set out should apply to votes on key issues in the Assembly.

Should the Assembly wish to provide further protection against such vexatious requests via standing orders, it is already permitted to do so. Section 41 of the 1998 Act provides a broad power for the Assembly to regulate its own proceedings by standing orders. Providing an additional explicit power for the Assembly to do so for removal motions is not necessary and could call into question the generality of the power in Section 41. The Government are, therefore, unable to support this amendment.

Amendment 10 would prevent a removal motion against the Justice Minister being brought before 1 May 2012, or, if the Assembly resolved before then to continue with the departmental model in the long term, from the date of that resolution. As with my earlier comments on Amendments 2 and 4, the key here is recommendation 11 of the Assembly and Executive Review Committee, which explicitly recommended that the arrangements for removing the Justice Minister by cross-community vote should apply until May 2012. Once again, this amendment contradicts the express wishes of the Northern Ireland Assembly and Executive Review Committee and the Government are thus unable to support it.

Lord Smith of Clifton: I thank the Lord President for her explanation. I heard what other noble Lords said. We are not unpicking the Belfast agreement; we are adding a new provision in the light of changed circumstances. My noble friend Lord Ashdown vividly described a situation where a Minister of Justice could find himself having to investigate, say, two quite different cases of corruption, which might be enough to unite the two main parties in seeking his removal. The Lord President has not given a satisfactory answer there. As for the assurances given by the First Minister, as I said at Second Reading, we have had categorical assurances from Ministers in Great Britain that were not, as it turned out, worth the breath that was expended on them. For these reasons, I wish to test the opinion of the Committee.

5 pm

Division on Amendment 2.

Contents 52; Not-Contents 212.

Amendment 2 disagreed.

11 Mar 2009 : Column 1194

Division No. 1


Addington, L.
Alderdice, L.
Ashdown of Norton-sub-Hamdon, L.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Burnett, L.
Chidgey, L.
Clement-Jones, L.
Cotter, L.
Dholakia, L.
Dykes, L.
Falkland, V.
Falkner of Margravine, B.
Fearn, L.
Garden of Frognal, B.
Glasgow, E.
Goodhart, L.
Greaves, L.
Hamwee, B.
Harris of Richmond, B.
Kirkwood of Kirkhope, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mar and Kellie, E.
Methuen, L.
Miller of Chilthorne Domer, B.
Neuberger, B.
Newby, L.
Northover, B.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Teverson, L. [Teller]
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tordoff, L.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Williams of Crosby, B.
York, Abp.


Adonis, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Andrews, B.
Anelay of St Johns, B.
Archer of Sandwell, L.
Attlee, E.
Barnett, L.
Bassam of Brighton, L. [Teller]
Bates, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bew, L.
Billingham, B.
Bilston, L.
Blood, B.
Boothroyd, B.
Borrie, L.
Bowness, L.
Bradley, L.
Brett, L.
Bridgeman, V.
Brooke of Alverthorpe, L.
Brooke of Sutton Mandeville, L.
Brookman, L.
Browne of Belmont, L.
Byford, B.
Cameron of Dillington, L.
Campbell-Savours, L.
Carnegy of Lour, B.
Carter of Barnes, L.
Carter of Coles, L.
Cathcart, E.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Colwyn, L.
Cope of Berkeley, L.
Corbett of Castle Vale, L.
Crawley, B.
Crickhowell, L.
Cumberlege, B.
Cunningham of Felling, L.
Dahrendorf, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Abersoch, L.
Davies of Oldham, L. [Teller]
De Mauley, L.
Desai, L.
Dixon, L.
Dixon-Smith, L.
D'Souza, B.
Dubs, L.
Eames, L.
Elton, L.
Elystan-Morgan, L.
Emerton, B.
Evans of Parkside, L.
Evans of Watford, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ferrers, E.
Filkin, L.
Finlay of Llandaff, B.
Fookes, B.
Foster of Bishop Auckland, L.
Freeman, L.
Gale, B.
Gardner of Parkes, B.
Geddes, L.
Gibson of Market Rasen, B.
Glentoran, L.
Golding, B.
Goudie, B.
Greengross, B.
Greenway, L.
Griffiths of Burry Port, L.
Griffiths of Fforestfach, L.
Grocott, L.

11 Mar 2009 : Column 1195

Hannay of Chiswick, L.
Harris of Haringey, L.
Haskel, L.
Haworth, L.
Henig, B.
Henley, L.
Higgins, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Hooper, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe, E.
Howe of Aberavon, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hylton, L.
Inglewood, L.
Jay of Paddington, B.
Jenkin of Roding, L.
Joffe, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of The Shaws, B.
Kilclooney, L.
King of West Bromwich, L.
Kingsland, L.
Kingsmill, B.
Kirkhill, L.
Laird, L.
Lea of Crondall, L.
Leitch, L.
Lindsay, E.
Listowel, E.
Lofthouse of Pontefract, L.
Lucas, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
McIntosh of Hudnall, B.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Marlesford, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Mayhew of Twysden, L.
Meacher, B.
Mitchell, L.
Montrose, D.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Bolton, B.
Morris of Handsworth, L.
Morris of Manchester, L.
Moser, L.
Murphy, B.
Naseby, L.
Neville-Jones, B.
Norton of Louth, L.
Palmer, L.
Pannick, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Prys-Davies, L.
Quin, B.
Rawlings, B.
Rendell of Babergh, B.
Renton of Mount Harry, L.
Richard, L.
Rogan, L.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
Ryder of Wensum, L.
St. John of Bletso, L.
Saltoun of Abernethy, Ly.
Sawyer, L.
Scotland of Asthal, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Shaw of Northstead, L.
Shephard of Northwold, B.
Sheppard of Didgemere, L.
Shrewsbury, E.
Simon, V.
Soley, L.
Stern, B.
Stoddart of Swindon, L.
Strathclyde, L.
Taylor of Bolton, B.
Taylor of Holbeach, L.
Taylor of Warwick, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Ullswater, V.
Verma, B.
Waddington, L.
Wakeham, L.
Walpole, L.
Walton of Detchant, L.
Warnock, B.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Williamson of Horton, L.
Woolmer of Leeds, L.
Wright of Richmond, L.
Young of Hornsey, B.
Young of Norwood Green, L.
Young of Old Scone, B.
5.17 pm

Amendment 2A not moved.

Amendment 3

Moved by Lord Glentoran

3: Schedule 1, page 6, line 37, at end insert “and in addition has made a solemn declaration to respect the operational independence of the Chief Constable of the Police Service of Northern Ireland and to uphold the independence of the judiciary”

11 Mar 2009 : Column 1196

Lord Glentoran: The amendment would require Ministers to make a solemn declaration and oath. This is vital. I have spoken again with the chief constable and, given the way in which things happen when terrorist activity and serious criminal activity gear up in Northern Ireland, he must have a guarantee of those freedoms. At Second Reading, I asked whether, had these recent murders taken place post-devolution, the chief constable would have the powers—the freedom—to call in resources independently, and I think, unless I am wrong, that the noble Baroness’s answer was in the affirmative. We believe that the amendment would clearly strengthen the Bill and give a lot of comfort to everybody involved in the process. I beg to move.

Baroness Harris of Richmond: We are happy to support the principles behind this amendment, which we think will allow the Committee to feel reassured on this point.

Lord Bew: I support the amendment in the name of the noble Lords, Lord Glentoran and Lord Kingsland. We have made great progress with the Bill since the first elusive reference to it in the Queen’s Speech, but this is a most essential matter. In our debates this afternoon, noble Lords have disagreed on the possible pressures that a Minister of Justice, an Attorney-General or the DPP might come under with the new arrangements. There is genuine room for disagreement and uncertainty about the political context in which those officers might operate. However, there can be no doubt at all, in the light of the past few days, that the operational integrity of the chief constable could come under challenge. We saw a bitter debate, before the tragic murders of the past few days in Northern Ireland, when the chief constable made his decision to call in Special Forces, and it is to be remembered that the anger expressed over that came from one of the key parties to the agreement we are moving to implement today. It is therefore vital that we do what we can to underline the operational integrity of the chief constable. In this case, it is not a matter of speculation or debate. This is a fraught political position and everything we can do or say, every signal that the Government can send—I am sure the Government fully accept the validity of the point that the chief constable should have operational freedom of manoeuvre—is vital.

Lord Browne of Belmont: This is a perfectly reasonable sentiment but I believe that it is unnecessary to include it as part of the legislation, because it is dealt with elsewhere in legislation. These are accepted realities in Northern Ireland and they are implicit in existing arrangements. Section 1 of the Justice (Northern Ireland) Act 2002 already places a duty on those responsible for the administration of justice to uphold the continued independence of the judiciary. In addition, all Ministers must take a pledge of office, which is also in the Ministerial Code. I therefore believe that this amendment is unnecessary.

Lord Kilclooney: The amendment seems to me to be downright common sense and I shall support it, unless there is a more adequate reply. The Bill, as the noble Lord, Lord Browne, has said, simply says that there must be an affirmation of,

11 Mar 2009 : Column 1197

Where in the Bill is that pledge of office defined and what exactly is this pledge of office? The wording seems very vague: we would be agreeing to something which is not explained. The solemn declaration in the amendment to respect the operational independence of the Chief Constable of the Police Service of Northern Ireland and to uphold the independence of the judiciary in Northern Ireland is common sense. Incidentally, when the Lord President says that the appointment has already been made by the First Minister and the Deputy First Minister and been widely welcomed throughout Northern Ireland, can she put on the record the name of that appointee? Obviously, it must be widely known if it has been widely welcomed.

Baroness Royall of Blaisdon: This is, indeed, an extremely important issue. As my right honourable friend the Secretary of State said in another place, the Government understand fully the sentiments behind this amendment and agree completely that all Ministers, whether in the UK Government or the devolved Administration, should be fully committed to these fundamental principles of independence.

I turn first to the issue of resources raised by the noble Lord, Lord Glentoran. On the current atrocities, the Prime Minister has said that we will provide whatever extra resources are necessary. Post devolution, the chief constable, like any other chief constable, will be able to request extra resources. That is the position.

Lord Glentoran: Request extra resources from whom? Not from the Assembly, I take it. The chief constable is apolitical, so from whom can he request resources?

Baroness Royall of Blaisdon: As I understand it, the chief constable, post devolution, would request technical resources from the United Kingdom Government. I will come back to the noble Lord if I am wrong.

Lord Kilclooney: Would it not be from the Northern Ireland Police Authority?

Baroness Royall of Blaisdon: Technical and specialist resources—resources relating, for instance, to bomb disposal—would be a matter for the Government of the United Kingdom. The chief constable would request those additional technical resources from the UK Government.

In respect of the judiciary, Section 1 of the Justice (Northern Ireland) Act 2002 already places a clear duty on those with responsibility for the administration of justice to uphold the continued independence of the judiciary. The duty applies today to my right honourable friends the Prime Minister, the Lord Chancellor and the Secretary of State. Post devolution, it will also apply to Ministers in the Northern Ireland Executive. The duty will be underpinned by a concordat between the UK Government and the devolved Executive that underscores the core principles of the independence and impartiality of the judiciary in Northern Ireland.

In respect of the police, the Independent Commission on Policing in Northern Ireland, known as the Patten commission, was clear that the chief constable must

11 Mar 2009 : Column 1198

have sole operational responsibility, and that neither the policing board nor the Government of the day, be it a devolved or direct-rule Administration, should have the power to direct him or her on how to conduct an operation. Section 33 of the Police (Northern Ireland) Act 2000 makes clear that the police come under the sole direction and control of the chief constable. Sections 3(4)(a) and 69 of the Act require that the duties of the policing board and the Minister respectively must be carried out with regard to the principle that the policing of Northern Ireland is to be conducted in an impartial manner.

Noble Lords will recall that the policing board itself was a central element of the Patten reforms. It is made up of 19 members: 10 political members drawn from the parties in the Assembly, selected using the d’Hondt formula; and nine independent members currently appointed by the Secretary of State but, post devolution, to be appointed by the Minister of Justice. It holds the chief constable to account on ordinary policing matters, and also supports the network of district policing partnerships that link the police and the community at local level.

As the noble Lord, Lord Browne, informed us, in addition to these provisions, the pledge that must be sworn by all Northern Ireland Ministers when they take office contains a commitment to,

These existing guarantees enable me to be very clear: statute already safeguards the chief constable’s operational independence and the principle of impartial policing after the devolution of policing and justice. The Government therefore do not believe that it is necessary or appropriate to replicate the guarantees in the Bill. Additionally, we believe that it is important that the Justice Minister should be subject to the same pledge of office as other Executive Ministers. Therefore, while we support the principles on which the amendment is based, we do not consider that the amendment itself is necessary.

I apologise if I unwittingly misled noble Lords on the earlier question of technical resources. The chief constable will request additional financial resources from the policing board, but requests for technical support will be made to the military and to the British Government.

Lord Glentoran: I thank the Lord President for her fulsome response. For simplicity and clarity, my amendment would be quite neat and tidy in the Bill. People would not have to refer to other Bills and statutes if they were arguing about this provision. However, knowing that it is there, if it can be found—I am sure that people will find it whenever it is needed—I feel able to withdraw the amendment. Of course, I would be delighted if, between now and Report, the noble Baroness would agree that it went in. That would be very helpful. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendments 4 and 4A not moved.

11 Mar 2009 : Column 1199

5.30 pm

Schedule 1: Northern Ireland department with policing and justice functions

Amendments 5 to 6 not moved.

Amendment 7

Moved by Lord Glentoran

7: Schedule 1, page 8, line 10, at end insert—

“Immediate filling of Ministerial office

6A If, after a period of six months following a devolution order relating to policing and justice being made, the Ministerial office has not been filled, the Secretary of State shall assume the direction of the department.”

Lord Glentoran: This is also a detailed amendment. The base of it is that I have been concerned ever since I started working on the Bill with the possibility of there being quite long periods after devolution without the appointment of a Minister. In other words, we could have criminal justice and policing devolved and even have a Ministry put together but if we do not have a Minister appointed, the department will be rudderless. It is a very serious department to have rudderless. My amendments attempt to cover that by setting time limits on how long the Assembly has to get its act together and agree to the Minister, the leader, on all occasions that the post becomes vacant. I am concerned that in the Bill there are at least two opportunities for sluggishness in making the appointment and for hanging around. Then we will not have direction in what is probably the most important department in that Executive. I beg to move.

Baroness Royall of Blaisdon: The noble Lord has spoken eloquently about the undesirability of providing for a vacuum, particularly in a portfolio as sensitive as that of justice. The Government recognise that there are concerns that, both after the transfer of powers and after the 2011 election, the Assembly will be unable to agree on whom to appoint as the Justice Minister. I hope that what I said at Second Reading, and what I am about to say, will reassure the noble Lord.

Amendments 7, 8, 9 and 11 provide that if a Justice Minister has not been appointed within six months of responsibility for policing and justice being devolved, or within six months of the Assembly election in 2011, or if the department is dissolved in 2012, the Secretary of State should assume the direction of the department or of the functions that it previously exercised.

The amendments are addressed at the absence of a deadline for appointing a Justice Minister during the transitional period up to 1 May 2012. The Government agree that having no Justice Minister in place is unsustainable in the long term. However, we have taken the view that it is not appropriate during that initial period to be prescriptive about deadlines. We disapplied the normal seven-day deadline for appointing the Justice Minister following an Assembly election to avoid a situation where a slight delay in reaching cross-community agreement on the prospective Justice Minister triggered a further Assembly election, disrupting the newly formed Executive just as they were bedding in.

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We deliberately did not put in its place an alternative deadline. The reason for that is two-fold. First, we have confidence that the parties in the Assembly will be able to reach agreement on a Justice Minister in a timely fashion and there is no need, during that transitional period, for us to impose specific deadlines: they will just get on with it without the need for us to set limits.

The second reason is that the Government believe that, in the event that the Assembly was unable to appoint a Justice Minister, it is right that the Government and Parliament should have the maximum flexibility to decide both when and how to intervene. It is unhelpful to speculate at this point as to exactly what the nature of that intervention might be and when it might prove necessary. Such prescriptive amendments would prevent the necessary flexibility in deciding how to deal with the situation. For that reason, the Government do not feel able to support the amendments.

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