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Second Reading

Northern Ireland Bill – in the House of Lords at 3:09 pm on 9th March 2009.

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Moved By Baroness Royall of Blaisdon

That this Bill be read a second time.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

My Lords, before I move on to the substance of the legislation before the House today, I wish to mention the tragic events of the weekend. The attack on Massereene Army base in Antrim, which resulted in the cold and deliberate murder of two people and serious injuries to four more, including two civilians, was a shocking reminder of Northern Ireland's dark past. Following the completion of this Second Reading debate, we will have an opportunity to debate the contents of a Statement that my right honourable friend the Secretary of State will make shortly in another place. For the time being, I am sure that the House will join me in expressing its condolences to the victims and their families, as well as to all those affected by this callous attack.

For many years, the political history of Northern Ireland was one of division. Attacks of the type that we have seen at the weekend, while no less callous and cold-blooded, were unfortunately all too common during the dark days of Northern Ireland. In recent years, however, thanks to the Belfast agreement in 1998 and the St Andrews agreement of 2006, the political environment of Northern Ireland has been transformed, with the development of firm foundations for a shared future in devolved government. Whenever such significant developments take place over a short period of time, there will always be those who wish to reverse that progress, and this is certainly true in Northern Ireland.

A small minority of people is determined to halt the political progress and drag Northern Ireland back to the climate of fear and uncertainty that dominated the political landscape for years, but it will not succeed. That small minority has no community support, as the revulsion towards the weekend's murders from both sides of the community and all points on the political spectrum demonstrates. The people of Northern Ireland are set on a political path and set against the type of criminality that has dominated our news programmes over the weekend. That is why it is important that we are not deterred from that political path, which has been carefully constructed over the past 12 years. The mindless actions of a tiny minority must not be allowed to place that progress and that new future at risk. We must press ahead with the political process and the process set out by the First and Deputy First Ministers in their statement of 18 November. The legislation before the House today represents the next stage in that process.

During the past 12 years, this House has seen many pieces of Northern Ireland legislation, most of it significant and some of it historic, but all of it helping to build the political process that has seen Northern Ireland move away from that past and towards a new, shared future in which locally elected politicians take decisions for the people of Northern Ireland. This legislation is certainly significant but it is also historic, because for the first time the parties in Northern Ireland have come together to decide on the way forward without intervention by the UK or Irish Governments.

The agreement announced by the First and Deputy First Ministers on 18 November last year set out a process whose completion would see the transfer of policing and justice responsibilities to the Northern Ireland Assembly. Subsequently, the work of the Assembly and Executive Review Committee, which is made up of the four largest parties in the Assembly, considered the modalities for devolution and made a series of recommendations in relation to the shape of a new department with responsibility for policing and justice functions. This report was accepted by the Assembly after a cross-community vote on 20 January and, subsequently, the First and Deputy First Ministers indicated that they wished the Government to introduce legislation giving effect to those elements of the agreement that required primary legislation. That is the effect of this Bill.

The Bill ensures that the necessary framework is in place to enable the continuation of the process set out by the First and Deputy First Ministers in November. It is made in Northern Ireland by the democratically elected representatives of the people of Northern Ireland. It will be for these elected representatives to decide when the time is right for devolution to take place. That is right and proper. It is for us to ensure that they can do so by fulfilling a commitment made to ensure that the Assembly has the necessary tools to move forward in a timeframe determined by the Assembly.

The Bill does not impose devolution. The process by which policing and justice will be devolved has already been set out by Parliament in Section 4 of the Northern Ireland Act 1998—the triple lock. It will initially require a motion requesting devolution to be tabled by the First and Deputy First Ministers acting jointly; that motion will then need to be approved by the Assembly on a cross-community vote. A series of orders giving effect to devolution would then be introduced in Parliament, which will have an opportunity to debate these orders and approve them if it so wishes.

I turn to the detail of the Bill before the House. Clause 1 gives effect to Schedule 1, which provides for a new departmental model. This model was set out in the statement by the First and Deputy First Ministers in November last year and in the report of the Assembly and Executive Review Committee, which was approved by the Assembly in January. As such, we would anticipate it being the model used to set up the first department of justice. However, the legislation does not require it to be. It simply adds this model to the menu of options provided by the Northern Ireland Act 1998. It therefore increases to eight the number of options that the Assembly can choose from when it legislates to set up a new Northern Ireland department with responsibility for policing and justice functions. The model itself consists of a single minister, nominated by any Member of the Assembly, elected by a cross-community vote in the Assembly and removed in the same way. Under this model, the justice Minister would not count towards the parties' allocation of seats on the Executive under the d'Hondt formula.

Both the agreement announced by the First and Deputy First Ministers and the Assembly and Executive Review Committee explicitly stated that this model should be subject to a sunset clause that would bring the arrangements to an end by May 2012. The Bill provides for the department to be automatically dissolved on 1 May 2012 unless the Assembly has agreed to continue the arrangements or agreed alternative arrangements.

I know that in another place concerns were raised about the mechanism provided in the Bill for the removal of the justice Minister. It may be helpful if I deal with some of those concerns now, although there will of course be a further opportunity to debate the detail of the provisions in Committee. In the models already provided for in the 1998 Act, there is a symmetry between the methods of appointment and removal. For example, under the d'Hondt system, the party's nominating officer appoints and has the power to remove. The Bill provides for the justice Minister to be appointed by a cross-community vote and, similarly, to be removed by a cross-community vote, reflecting the same principle of symmetry.

However, the most important point for noble Lords to consider in relation to this issue is that the methods of appointment and removal were explicitly recommended by the Assembly committee report that was approved by the Assembly. At a time when we are continuing to try to build confidence among the people of Northern Ireland, which will enable us to move towards the devolution of policing and justice, it is vital that we are able to provide as stable a system as possible for the justice Minister. I recognise that there are those, including some in this Chamber, who consider this method of removal as evidence of a lack of stability for the justice Minister, but to them I say that surely the best method of providing a stable framework for the future administration of justice is to provide the framework that the people who will be operating within it feel is sustainable. That is the framework set out by the First and Deputy First Ministers, recommended by the Assembly and Executive Review Committee and endorsed by the Assembly in the cross-community vote that approved that report. It is a framework that I believe the First and Deputy First Ministers are committed to making work. We saw a clear illustration of this when the Bill was debated in another place last week. The right honourable Member for Belfast East, speaking as the First Minister, was categorical in his assertion:

"Neither the First nor the Deputy First Minister will wish to do anything other than give full 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".

He went on to say:

"If there were any difficulty in the process, of course the prospective Justice Minister could talk to the First and Deputy First Ministers about what lay ahead to ensure a clear understanding of the nature of any potential removal from the job".—[Hansard, Commons, 4/3/09; cols. 940-41.]

To my mind, this makes it clear that the fears of some noble Lords relating to both the ease with which a justice Minister could be dismissed and the desire to do so are unfounded. The Government believe that the framework, set out by the democratically elected representatives of the people of Northern Ireland, should be provided to those representatives as an option for use in setting up the new justice department.

Given the careful consideration that was given to this model both by the First and Deputy First Ministers and by the Assembly and Executive Review Committee, and given the belief among the elected representatives of the people of Northern Ireland that this is a model that they can make work, I hope that noble Lords will see the reasons for the Government providing for this model in the Bill and see fit to support these provisions in the later passage of this legislation.

Clause 2 and Schedules 2 to 6 deal with the arrangements for judicial appointments and removals following the devolution of policing and justice. We will have a further opportunity to debate these provisions in greater detail in Committee on Wednesday but, broadly speaking, the Bill provides for functions relating to judicial appointments and removals to be exercised by the Judicial Appointments Commission and, in some cases, by the Lord Chief Justice and the Northern Ireland Judicial Appointments Ombudsman as opposed to the First and Deputy First Ministers, as had previously been envisaged. In particular cases, important roles also remain for the Prime Minister and the Lord Chancellor.

The agreement between the First and Deputy First Ministers last November stated that these arrangements would be temporary and that permanent arrangements would need to be put in place by May 2012. Schedule 6 provides for this by placing a requirement on an Assembly committee to review the arrangements put in place by the Bill and to make recommendations before 1 May 2012. It also places a freeze on any new appointments to the Judicial Appointments Commission from 1 May 2012, unless and until the Assembly has agreed the future arrangements for judicial appointments and removals. While this freeze will not prevent judicial appointments from being made, it will result in a significant incentive for the Assembly to agree a way forward.

Clause 3 makes two technical amendments to the post-devolution framework in Northern Ireland. The first such amendment is to provide for the current function of the Attorney-General of Northern Ireland in relation to providing guidance on the disclosure of juror information to be split between the Advocate-General for Northern Ireland and the devolved Attorney-General for Northern Ireland after devolution. The Advocate-General will retain responsibility for issuing guidance in respect of national security and terrorism-related cases, while the devolved Attorney-General will be responsible for all other cases. The division of responsibility reflects the split of the current Attorney-General's functions that was agreed by Parliament in the Justice (Northern Ireland) Act 2002.

The second amendment, made by Clause 3(2), provides that the office of the Director of Public Prosecutions for Northern Ireland will be a corporation sole. Noble Lords may not be aware that corporation sole is a legal status, meaning that the Public Prosecution Service is able to hold property in its own right rather than having it vested in a department on its behalf.

During the Committee debate in another place, issues were raised in relation to the lines of accountability of both the Director of Public Prosecutions and the Attorney-General. These are not affected by the Bill, which does not alter the relationships between the Public Prosecution Service, the Attorney-General and the Assembly as already provided for by the Justice (Northern Ireland) Act 2002. However, I recognise that there are concerns regarding this issue and it may help if I set out the reasons why the Government believe that the existing arrangements, as provided for by Parliament in the 2002 Act, are right and proper given the particular circumstances of Northern Ireland.

Your Lordships will recall the significance of the criminal justice review of March 2000 which led to the 2002 legislation. This review was the most important and far-reaching survey of criminal justice in Northern Ireland in over 30 years and flowed from a specific commitment in the Belfast/Good Friday agreement. The review and subsequent legislation enshrined the principle of prosecutorial independence in Northern Ireland. The review states that,

"in the particular circumstances of Northern Ireland, we believe that this independence should be further strengthened, by ensuring that the relationship between the Attorney General and the head of the prosecution service, while containing elements of oversight, is consultative and not supervisory. In other words, there should be no power for the Attorney General to direct the prosecutor, whether in individual cases or on policy matters".

I can understand that some noble Lords may question whether a review that took place nine years ago remains relevant today given the progress that Northern Ireland has seen in that period. The approach taken by the review reflected the particular circumstances of Northern Ireland. However far the politics have come in Northern Ireland, it is clear that the circumstances there are still significantly different from those in England and Wales. The need for confidence from all sections of the community in all the justice system remains of crucial importance, particularly at the point when the Assembly takes on responsibility for that system for the first time since 1972. The Government firmly believe that this fact warrants a different approach being taken in Northern Ireland.

The 2002 Act, which gave legislative effect to the criminal justice review, was drafted to provide for the appropriate lines of accountability in the post-devolution world. The fact that the process of getting to that post-devolution world has taken longer than most of us anticipated at the time reinforces the need to ensure that these arrangements, designed to create community confidence in the prosecutorial system, are allowed to continue to bolster those levels of confidence to the point where responsibilities are devolved. The fact that the First and Deputy First Ministers have not proposed that those arrangements should be changed is an indication, in the Government's view, that the time has not yet come to change them. If, at some point in the future after we have devolved policing and justice, the Assembly concludes that Northern Ireland has come sufficiently far from the circumstances that obtained at the time of the criminal justice review, the Assembly will have the opportunity to change the arrangements in the 2002 Act. I do not think that it would be helpful for this House to seek to impose change at this stage in advance of the elected representatives of Northern Ireland coming to the conclusion themselves that the time was right.

It is still important that the DPP can be held accountable by the Assembly. That is right and proper and is provided for in the 2002 Act. While the Assembly will not be able to inquire into individual cases—that would be trespassing too far on the principle of prosecutorial independence—its justice committee would be able to summon the DPP to give evidence on all matters relating to the financial and administrative running of the service. In addition, there is provision in the 2002 Act for the Assembly to provide an opportunity in its Standing Orders for the Attorney-General to speak and answer questions in the Assembly itself, as well as in Assembly committees, although he will not be able to vote. Given the consultative relationship between the Attorney-General and the DPP, this means that the Attorney can also answer questions relating to prosecution matters, including prosecution policy and systems, although he will not be able to answer questions relating to individual cases.

Another important recommendation of the criminal justice review was that the Attorney-General for Northern Ireland should not be a political figure. The 2002 Act provides for the appointment to be made by the First and Deputy First Ministers. They have already indicated the person whom they would like to appoint, to widespread approval. There has been some suggestion—we will have an opportunity in Committee to debate amendments to this effect tabled by the noble Lord, Lord Kingsland—that the Attorney should be appointed by the Lord Chief Justice rather than by the First and Deputy First Ministers and that the Attorney should have a more active prosecutorial role. The Government believe that this would be a departure from the principle of separation of powers, which is a fundamental tenet of the UK's constitution. The distinction between the prosecutorial system, which brings cases on behalf of the Crown, and the judiciary, which tries those cases impartially and independently, would be frustrated if we moved to a position where the head of the judiciary appointed the head of the prosecution service. In addition, given the Attorney-General's role as a source of legal advice to the Executive, it is important that the post is filled by someone who has the confidence of both the First Minister and the Deputy First Minister. The arrangements set out in the 2002 Act, reflecting, as they do, the recommendations of the independent criminal justice review, are, in the Government's view, the right framework in which to place Northern Ireland's devolved institutions on the right footing when they take on responsibility for policing and justice.

Clause 4 extends the scope of the order-making power in Section 86 of the Northern Ireland Act 1998 to enable the possibility of executive functions being devolved, even if the legislative competence for the matter remains reserved. Ultimately, this will allow Parliament greater flexibility to ensure that responsibility for certain functions sits at the most appropriate level, while reserving legislative competence for Westminster. Parliament will have control over the use to which the power is put. All orders made using this power are subject to the affirmative procedure and we will have an opportunity to debate them fully when the time comes.

The murderous attack over the weekend has brought into sharper focus the continuing threat that Northern Ireland faces from a small minority of people who are determined to disrupt the progress made in recent years. The shock and revulsion that have been abundantly clear in all parts of Northern Ireland demonstrate how far we have come in recent years. The greatest memorial to the weekend's victims is to continue with the political process and to show that this minority will not be allowed to drag the people of Northern Ireland, who are united in their commitment to political progress, back to a time when violence dominated the politics of the Province. The progress made by the Northern Ireland Executive must be allowed to continue and this Bill represents the Government's support for that progress, giving effect, as it does, to the agreement of the First and Deputy First Ministers and the Assembly and Executive Review Committee.

Before I close my remarks, I shall address a concern that I know is shared by a number of noble Lords about the time allocated to consider this legislation in this House. That concern is recognised by the Government. However, it is not for the sake of the Government that we have sought to push this Bill through Parliament on a reduced timeframe; it has not been done for the simple sake of expediency. The Belfast agreement of 1998 set out the Government's support for the principle of the devolution of policing and justice. That support was augmented by the St Andrews agreement, which set out the Government's belief that the implementation of that agreement should be sufficient to build the community confidence necessary for the Assembly to request the transfer of policing and justice powers by May 2008. The Government gave a commitment that they would do all that they could to facilitate progress and to ensure that the necessary enabling legislation would be in place to ensure that, when the Assembly felt ready to request the transfer of responsibilities, that transfer could take place expeditiously. That commitment stands, which is why it is important that we do all that we can to ensure that we expedite the path of this Bill.

Of course, your Lordships will know that, in making this comment, I do not discount the vital importance of ensuring that Parliament has the opportunity to scrutinise carefully the legislation before it. I recognise that that opportunity has been curtailed in this case, although I hope that the briefings given by my right honourable friend the Secretary of State for Northern Ireland and his officials have been of assistance to noble Lords and have helped that process of consideration, even given the reduced timeframe in which the process has taken place. However, the Government believe that it is correct that the people of Northern Ireland, through their Assembly, should be able to move forward with the devolution of policing and justice at a pace determined by them. While a final decision on when devolution should take place has not yet been reached, should the process of building community confidence continue apace, there is no reason why that decision should not be taken soon.

I know that all of us in this Chamber today have the interests of Northern Ireland at heart. We have spent much time over the years debating how best to provide for Northern Ireland and, more recently, celebrating the fact that devolution has been restored and that its elected representatives can, once more, take responsibility for the issues that matter to the people of Northern Ireland. This Bill gives effect to the wishes of the representatives of those people. It is for that reason that, notwithstanding the understandable frustration that many of your Lordships feel about the limited time available to consider the Bill, I am confident that no one here would want this House to become the stumbling block to progress in Northern Ireland. We have a duty to scrutinise the Bill carefully, but we also have a duty to do what is right in the interests of Northern Ireland. In that spirit, I commend this Bill to the House. I beg to move.

Photo of Lord Glentoran Lord Glentoran Shadow Minister (the Olympics), Culture, Media & Sport, Shadow Minister, Northern Ireland, Shadow Minister, Wales 3:32 pm, 9th March 2009

My Lords, before I address the Bill, I should like to associate my party with the opening remarks of the noble Baroness the Lord President in relation to the awful happenings on Saturday. Although it is not much use, let the families and friends of the dead and seriously wounded know that our thoughts and hearts are with them today. There is a Statement later on that happening and anything political that comes from it, so I do not propose to dwell on it at this moment.

What I am about to say is not in any way concerned with the noble Baroness the Lord President and the noble and learned Baroness the Attorney-General. From our side, and certainly from my point of view, this has been the worst handled Northern Ireland Bill that in the 10 years that I have been doing this job I have ever been associated with. We are rushing a complex and hugely important Bill, which is vital to the constitution, and which invokes parts of something like six Northern Ireland Acts that need to be read and understood even to start to understand this Bill. The Bill had something like six hours, including the programme Motion debate, in the other place. If you read Hansard, there is only one conclusion that you can come to. I dare not use the language that I would use outside the House, but it was not a very good conclusion.

I thank the noble Baroness the Lord President and the noble and learned Baroness the Attorney-General for the huge assistance they gave to me, to my party and eventually to all your Lordships in getting out briefings and laying on meetings to help us understand what this Bill is about, what it is doing, why it is needed, where it is coming from and where it is hoping to go to. I do not understand why we had to rush it all through. It will not be rushed through once it leaves here but the Secretary of State is the Secretary of State and we have to live with him while he is there.

There are a number of areas of the Bill about which we are not happy. Thanks to the support of my noble friend Lord Kingsland, the Government now fully understand our worries. We just need to make sure that they stay up front. If it passes through this House, the Bill will go back to the Northern Ireland Assembly. One of the things that concerns me—made even more worrying after Saturday night—is the state of the structure and organisation of criminal justice and policing in Northern Ireland. I believe that the criminal justice system, the judiciary and so on are in good shape. I have been assured of that by the Attorney-General, who is the Attorney-General for Northern Ireland. I know that she has had an interest in Northern Ireland for many years. However, I am seriously concerned about the police and the security forces as a whole.

The Northern Ireland Assembly, if it pursues one of these options and asks for devolution, will be inheriting a police force with a chief constable who is retiring—or being moved—a deputy chief constable who is heading for retirement and an overdraft or debt in the police budget of more than £50 million. Furthermore, the Government have required the police service to save £350 million over the next three years and that overtime is reduced by 51 per cent. Considering the security situation in Northern Ireland as of today and last week and indeed for some time—it was quite some time before the chief constable shouted for help—that is not a good state in which to hand over something as important to a community as its policing. I want to know whether the Government plan to ensure that when it comes to devolving the police and criminal justice system, they are devolving a top-rate, on-top-of-the-job well-funded organisation.

We recognise that the Bill does not itself deliver the devolution of criminal justice and policing. The Bill merely creates an eighth model of how justice powers could be devolved if and when the Assembly feels able to agree. That is a matter, rightly, for the MLAs in Northern Ireland to decide. However, powers should be transferred from this Parliament only when three criteria have been met. First, all parties represented in the Executive should be committed to pursuing their objectives by exclusively peaceful and democratic means. Having heard and read some of the comments of Sinn Fein politicians near the top of the police board as well as Adams and company, I do not believe that they support the PSNI other than cynically because it suits them to use it to pursue their own political agenda, which is not the political agenda of all the people of Northern Ireland.

Secondly, all parties should fully support in word and deed the criminal justice system, including the police and courts. Thirdly, such a transfer of power should command support across the community, as expressed through Northern Ireland's political representatives.

We have always made it clear that any devolution of policing and justice powers must preserve the operational independence of the chief constable and his officers. If power had been devolved and the chief constable had asked for support from the SRR, I wonder whether the Assembly would have been able to give it to him or would he still have the power even to ask for it?

In terms of how the Bill is presented, we are not happy that the Director of Public Prosecutions for Northern Ireland is independent of a parent department within the Northern Ireland departmental system. I understand the arguments that I have been given by the Attorney-General and I understand why we are where we are but the fact that the Attorney-General for Northern Ireland will be appointed by the First Minister and Deputy First Minister means that he cannot be independent of politics. Northern Ireland being what it is, things soon swings into, "Your turn, my turn".

We were also unhappy about the supervision and support of the DPP. There has been no criticism whatever from me or my party of how the DPP has operated in any way; it has been superb. However, we feel that it needs supervision. The DPP needs support and, at times, some management; in the rest of this kingdom, the DPPs have both support and management.

We have tabled a number of amendments, which will be considered later. However, we in my party have discussed this Bill at length—for a considerably longer time than it spent in another place—and we have done so with Ministers and the noble Baronesses on the Front Bench. We believe that in the situation that Northern Ireland finds itself in and where we are, we should let the Bill go through. We also support whatever is required to keep criminal justice and policing on the road.

Photo of Lord Smith of Clifton Lord Smith of Clifton Spokesperson for Constitutional Affairs, Spokesperson for Northern Ireland 3:43 pm, 9th March 2009

My Lords, I thank the Lord President for introducing this Bill. I associate these Benches with the condolences that have been expressed over the killings of the two soldiers and the best wishes for the full recovery of others who were wounded at the Massereene barracks in Antrim on Saturday last.

These atrocities serve to support the arguments I shall adopt regarding the need to strengthen the position of the proposed Minister of Justice. The Bill before us today is the latest in a series of attempts by the Government and the Executive in Northern Ireland to get the mechanics right when devolving policing and justice matters to the Assembly. It provides yet another model for a department of policing and justice to add to those introduced by the Northern Ireland (Miscellaneous Provisions) Act 2006 and the Justice and Security (Northern Ireland) Act 2007.

As has been said, the Bill does not give details of what powers will be devolved to the Assembly, nor does it tell us when this is likely to happen. In that regard, therefore, the Government cannot claim that this is "emergency" legislation that should be rushed through this House and the other place in a matter of days. The Lord President's explanation is less than satisfactory. When the Bill was debated in the House of Commons, there was a great deal of anger that it had been rushed through so quickly. It may be urgent, but surely not so urgent that adequate time cannot be provided between the discussions on the Bill in both Houses. This is a complex piece of legislation, as the noble Lord, Lord Glentoran, emphasised when he referred to previous Northern Ireland Acts that subsequently were amended many times. We, too, are grateful to officials for providing a copy of the consolidated legislation, and for their assistance with our queries on the Bill. Nevertheless, more time for consideration of the Bill would have been welcome, as would notice of the meeting that took place today at 1 pm with the Attorney-General and the Lord President. I became aware of that on the train coming down, and could not attend.

The Liberal Democrats are a devolutionist party. For many years, we have supported and promoted the principle of devolving policing and justice powers to the Assembly. We want a local Minister to take responsibility for local aspects of the criminal justice system. That would be a major step in the normalisation process in Northern Ireland and could be regarded as the final piece in the jigsaw puzzle of the peace process. Several measures have already been put in place to provide greater transparency and accountability in operational matters; now they need to be entrenched in an Executive Minister who has been elected by local people.

However, we must not underestimate the challenges that face Northern Ireland in the areas of policing and justice. The noble Lord, Lord Glentoran, mentioned some of them, including, crucially, the financial matters that must be clarified, particularly in relation to the number of police officers, given the current threat by dissident Republicans—a threat described by the chief constable as being at the highest level for a decade. The atrocities at the Massereene barracks at the weekend fully validate Sir Hugh Orde's grave assessment of the current security situation. We must also address the increasing financial pressures on the prison estate, with a growing prison population and tougher sentences, and the matter of legal aid. Nevertheless, we believe that these issues should be decided at a local level by a local Minister. In so far as the Bill helps the Assembly to achieve that aim, we support it.

Our difficulty, of which the noble Baroness is well aware and to which she has alluded, lies with Schedule 1 to the Bill, and in particular with the provision dealing with the removal of a Minister from office. The schedule proposes that a Minister of Justice can be removed simply by a cross-community vote in the Assembly. The Secretary of State may argue that this is the procedure for the removal of any other Assembly Minister. However, that would be to ignore the political implications of this part of the Bill.

We have warned Ministers previously not to look upon policing in Northern Ireland as being in any way comparable to other ministries there. Northern Ireland policing has a different dimension. There are special arrangements, including human rights compliance and structures for oversight and accountability. The fact that we are debating yet another model for a Ministry of Justice in Northern Ireland, in addition to the various other models that are on the statute book, emphasises that this is not just "any other Ministry".

The model in effect implies that, for something as important as policing in Northern Ireland, there must be special arrangements. We must create an entirely new department, outside the 10 departments that already exist in the Assembly, to accommodate such weighty functions. The model suggests that, although we have looked at how such a Ministry should be structured, we have not yet got it right. This is too important to be anything less than as optimal as can be contrived. To state simply that the Minister who is in charge of one of the most contentious and critical departments can be dismissed in the same way as other members of the Executive ignores the special circumstances that surround this portfolio.

Policing and justice functions are different in Northern Ireland. Indeed, they are so different that the parties that currently compose the Executive believe that they should look outside themselves to find a person who can fulfil the role of Minister of Justice. It is not the function of the Bill or of this House to appoint the first Minister of Justice. That responsibility lies with politicians in the Assembly. However, it has been rumoured—indeed this was discussed in the other place—that the First and Deputy First Minister are looking to the Alliance Party to fill such a role. To place an Alliance Minister in a position where he or she can be so easily removed from this office is completely unacceptable. There is no equivalence between a Minister who has to retain only the confidence of his party nominating officer and a Minister elected by the Assembly as a whole, as the Justice Minister will be. The words of the First Minister, Peter Robinson, speaking in the other place last week, were welcome, but unless his intentions are enshrined in legislation they cannot provide, unfortunately, the necessary comfort that is required. We do not doubt his sincerity when he stated, as the Lord President has already quoted:

"Neither the First nor the Deputy First Minister will wish to do anything other than give full support to a Justice Minister".—[Hansard, Commons, 4/3/09; col. 940.]

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 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.

Photo of Lord Morrow Lord Morrow DUP 3:52 pm, 9th March 2009

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 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.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench 4:00 pm, 9th March 2009

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 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".—[Hansard, 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.

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 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?

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative 4:12 pm, 9th March 2009

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 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.

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 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.

Photo of Baroness O'Neill of Bengarve Baroness O'Neill of Bengarve Crossbench 4:24 pm, 9th March 2009

My Lords, at the end of last week we perhaps expected to have this debate in an atmosphere where we felt that things were moving forward in Northern Ireland. Like other noble Lords, I have been saddened, disappointed and outraged by the events last Saturday at Massereene barracks. Despite the warnings by the chief constable, no one could have anticipated them. In that circumstance, this Bill could have expected a favourable wind. After all, on the surface it comes with cross-community support and cross-party support here. I broadly support it, and others have given very good reasons for supporting it.

However, the wind is also blowing from a different quarter, and the reason is the outrage expressed by several noble Lords—and with great eloquence in another place— about the way in which this measure has been brought forward. This is a constitutional Bill; it is not a piece of small, secondary legislation, but constitutional legislation for a situation that is still complex and intricate. It is not merely that the other place was offered spectacularly little time to debate it, but that none of us—despite the great assistance received from officials—was given the time needed to see how the various pieces of legislation referred to will interact. I am sure that others have spent the weekend with cold or hot towels, according to preference, getting their minds around how these provisions interact. I want to return to the question: why the haste? In some ways, that lies close to the surface at this point.

In the other place, two distinct reasons were given for the haste. It is always a bit worrying when two reasons that pull in quite different ways are given for the same policy. One reason is that there was no parliamentary time, but that does not stand up to the evidence. We know that it has been many weeks, indeed months, since the First Minister and the Deputy First Minister reached agreement; it has been nearly two months since the Assembly came to an agreement, and there has, presumably, been liaison and contact between the Secretary of State and what was going on in Northern Ireland. Nevertheless, we find the plea made that, in this rather lighter parliamentary Session, there was no time to do otherwise. That point was made not just on one occasion, but again and again.

Beside that, a quite different reason was given for this unseemly haste by the Secretary of State and expanded on by the previous Secretary of State, the right honourable Peter Hain: that this is a matter of keeping the momentum. That metaphor comes, I think, from bicycle riding; most of us, if we lose our speed aboard a bicycle, tend to fall off. That metaphor of momentum may have had its place in negotiations among parties reluctant to reach agreement; however, on this occasion, it has none. We are not in a situation of negotiation among highly divided parties which have to be cajoled and goaded toward agreement. This is a parliamentary process and a constitutional Bill. I do not see why momentum provides a reason for haste. On the contrary, the assumption that momentum is at stake here has served us ill. It has meant that a great deal of the discussion in the other place, and here today, has been devoted to the way in which the Bill has been brought forward and the lack of time for its consideration—and then we come to the complexities.

There is a suspicion, voiced by the noble Lord, Lord Maginnis, on which I have no opinion of my own. Yet the House deserves to hear that suspicion laid to rest or confirmed. In that spirit, I shall say very little more. If the Minister could tell us the central reason for this process being used for a constitutional measure, it would put many of us in a position to make a clearer judgment about the substance of the Bill. I do not think that many of us would find it difficult to support a Bill whose central provision is to take the Minister of Justice out of the d'Hondt process. There are ancillary questions to be raised and scrutiny to be done, but could the Minister tell the House what led to this unseemly haste? I should be greatly relieved if she could honestly tell the House that it was a muddle.

Photo of Lord Browne of Belmont Lord Browne of Belmont DUP 4:30 pm, 9th March 2009

My Lords, I thank the Lord President for bringing the Northern Ireland Bill before the House this afternoon. Perhaps not on the face of it substantial, it is nevertheless very significant for the structural management of policing and justice in Northern Ireland.

Before I proceed, I, too, offer my sincere condolences to the families of the serving soldiers who were murdered in the service of our country at Massereene barracks in Antrim on Saturday. I extend my sympathy to the families of the soldiers and civilians who were injured and I very much hope that they will make a full and speedy recovery. Saturday's tragic events will make all of us strive all the more energetically to ensure that the peace process continues and develops. This Bill is an important element of that process and nothing should be allowed to deter the people of Northern Ireland from striving towards a shared future of peace and harmony.

Without wishing to be churlish, I draw attention to my party's concern and frustration at the legislative timetable of this Bill in the other place. Unlike with other Bills pertaining to Northern Ireland, there is no deadline, crisis or stalemate which justifies the accelerated passage that this Bill is receiving. Indeed, there is a genuine concern that without an appropriate period of scrutiny, this Bill and, perhaps more importantly, the schedules attached, may pass with certain flaws that could otherwise have been detected and amended in the usual manner. That said, noble Lords should be aware that my party is, in principle, supportive of the devolution of policing and justice powers to Northern Ireland. Indeed, during the passage of several Northern Ireland Bills within this place, I expressed the hope that sufficient public confidence would eventually exist in Northern Ireland to allow the early devolution of significant powers to the locally accountable legislative Assembly.

The devolution of policing and justice is not an aspirational desire. These matters are an essential cog of government, without which the long-term devolution project in Northern Ireland could be called into question. Indeed, it was only a short time after the Northern Ireland Parliament lost this legislative competence that devolved government in Northern Ireland came to an end with the prorogation of the Stormont Parliament in 1972. For this reason, I support the passage of this Bill as a tentative first step, which permits the Assembly to request the devolution of policing and justice powers when it is satisfied that there is sufficient confidence within the community and that the political maturity exists to deal which such functions.

To date, considerable progress has been made towards achieving these goals. Before devolution could be restored in Northern Ireland, my party insisted that support for the courts, the police and the rule of law should be an essential prerequisite for the appointment of any individual to an executive office. While some thought that such a request might be a barrier to progress, my party held firmly to the position that this was a normal requirement in any democratic society—and, fortunately, this view prevailed.

I am confident that continued cross-community cooperation will gradually increase public confidence which should, eventually, permit the devolution of policing and justice. The principle of devolving these powers is an objective on which both unionists and nationalists can unite, and the passing of the Bill will allow the next stage in the process of developing public confidence to begin. For that reason, I support the Bill.

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench 4:35 pm, 9th March 2009

My Lords, first, I express my deepest sympathy to the families of the murdered soldiers and to the soldiers and civilians injured in the horrific, cowardly incident in Antrim on Saturday night. I must admit that, like many others, I thought and hoped that this sort of thing was behind us. I would point out that in the Province, at home, we have been well aware of the increased threat over the last few months from dissidents of the Real and Continuity IRA. However, I should tell your Lordships that, at ground level, many of the personalities serve either movement. They separate at leadership level, but it is well known that they wish to be closer. Therefore, we should not differentiate so much between them; they are simply all terrorists.

Secondly, the increased known threat did not include this incident in Antrim, which came out of the blue. So the threat continues to be as severe as it was on Friday, even if the perpetrators go to ground, or, even better, if they are brought to justice. I thank the noble Baroness, Lady Royall, for her introduction of this Bill to complete the devolution of Northern Ireland and the peace process, but, again, I would ask why it is so rushed. It seems to be lacking in professionalism to have pushed it through like this. I realise that the Bill produces only a model for the basis of the devolution of policing and justice. However, this may be our only chance to comment on it in your Lordships' House. I also accept that it is largely a done deal between the DUP and Sinn Fein, both having accepted it.

However, I would like to make a few observations on the issue as a whole. The Government must ensure that these powers of policing and justice are devolved into a stable and democratic political environment. It is important to note that matters of national security are not devolved and I would like to address this for a moment. I would also like the Minister, in her reply, to clarify national security issues, reiterate where they stand in a devolved situation and make it absolutely clear. A lot of the rows over the last few days, prior to this incident, were based on a misunderstanding in some quarters and Sinn Fein playing a different game. Over the last while, Sinn Fein has been active in showing its support for policing, law and order and the courts. This is very welcome.

However, when the chief constable, due to the threats to national security, called in support from the Reconnaissance Regiment, we saw an outraged hysterical attack on him and the Government, and this has done absolutely nothing for community relations in Northern Ireland. Sinn Fein is acutely aware of that and yet it did it and continues to argue it. Therefore, we have a right to ask if Sinn Fein support for law and order is unconditional or conditional and tactical. I hope that it is not the latter, but I fear that it is not being honest in this respect. They may well argue that the current threat is not to national security. I beg to differ and, quite clearly, the Government differ as well; hence, the support being given to the chief constable.

We have known for a long time that the dissidents have links outside the UK and Ireland. Indeed, there has been al-Qaeda activity in Northern Ireland but no incidents. The Antrim incident gives them more credibility in international terrorist circles and it is of national security importance. Although it was a really ghastly, terrible, murderous incident, in terms of terrorism, the dissidents have been after something to give them credibility, both internationally and at home. It is not only international; there are a large number of ex-provisional-type people who are sitting on the fence, waiting to see if the dissidents could do anything credible. Well, now we see that, for a start, they have weapons that were meant to have been decommissioned; not only the weapons, but the Semtex that was used recently. This is really quite bad news for us all.

Sinn Fein's attitude does not show unconditional support for policing and law and order. I think that I did not hear Gerry Adams or the Deputy First Minister referring to the Antrim shooting as "murder", and they spoke for a fairly long time on radio and television. I think that the latter actually referred to it as "restarting a war". This was not condemnation with the strength that we would have all liked to have seen.

In addition, the dissidents are far from being unknown new recruits, as I think Gerry Adams would have liked us to believe when he spoke on the television, in their 20s and teens. Some of them may be; however, the murderers on Saturday night were cool, experienced veterans, as are most of the known groups and the leadership thereof. It is no good anyone hiding behind the idea that these are raw recruits going out on a simple test. That was not so. Until a few years ago, they were colleagues of the senior staff and leaders of Sinn Fein while on active service in the provisionals. The only way that Gerry Adams can distance himself from them, pretending that he does not know who they are, is by saying that they are teenaged recruits. I am sorry, but that is a farce.

Many of us in Northern Ireland wonder why Sinn Fein has not put more pressure on its erstwhile colleagues to stop their terrorist activities—or even expose them to the police, the very force that it now says that it wants to support. Sinn Fein's attitudes and actions in the past week have done more to undermine community cohesion than anything for quite some time, while the situation had been getting better.

I have two quick points about the devolving of justice. We must ensure that the legislation is as workable and manageable as possible, but I see that there are deficiencies in our law as it stands and we are asking other people to operate it. First, many people are disappointed that we do not yet have the admissibility of radio and telephonic intercept evidence in courts. I know that the Minister will not necessarily reply to that; we have been through it a large number of times, but I want to make the point.

Secondly, another issue has had a bearing on these recent events, so noble Lords will excuse me for mentioning it. Section 3 of the Criminal Procedure and Investigations Act 1996 deals with primary disclosures by the prosecutor:

"The prosecutor must ... disclose to the accused any prosecution material which has not previously been disclosed to the accused and which in the prosecutor's opinion might undermine the case for the prosecution against the accused".

However, on the defence side, compulsory disclosure by the accused only has to give a defence statement, setting it out "in general terms".

For an example of how that is perhaps affecting us at this minute, in the Omagh bomb case, low-copy DNA evidence was discredited due to the evidence of two expert witnesses. One of them had an undisclosed criminal record from Scotland. The second had a court ruling made against his role as an expert witness in the US in 1995, which said that he was unqualified and incompetent to perform any DNA testing in any criminal case. As a result of their misleading the court, three other cases against accused dissident terrorists were dropped at that time. They were all significant, and may be involved in today's terrorist activity—I would have said almost certainly. Do the Government recognise this inadequacy in the disclosure by the accused in the Criminal Procedure and Investigations Act 1996 and does the Minister agree that its lack of effectiveness may have contributed to the incident on Saturday night?

Finally, I support the intentions of this Bill but I seriously question the integrity of Sinn Fein's so-stated support for policing and law and order. I am not sure how its sincerity and maturity, if there is any, can ever be validated.

Photo of Lord Goodlad Lord Goodlad Conservative 4:45 pm, 9th March 2009

My Lords, I, too, echo the Lord President, as have other Lords, in expressing revulsion at the cowardly attack at Massereene barracks at the weekend, condolences to the relatives of those who died and hope for the early recovery of those who were wounded. The thoughts of us all are with them. Having seen the effect of such acts of violence over the years on opinion not only in Ireland and Great Britain but also in countries to which large numbers of Irish people have migrated, I share the view that these acts are not only evil and contemptible in themselves but wholly counterproductive from everybody's point of view.

I turn to the Bill before us; the work of Parliament must go on. Your Lordships' Constitution Committee published a report on 5 March, to which reference has been made, drawing attention to the constitutional implications of the Bill. The Bill has two aims which are of constitutional significance. First, it seeks to provide an interim framework for a Northern Ireland department and a Minister responsible for police and justice ahead of devolution of those functions. Secondly, the Bill contains interim provisions for judicial appointments and removals, and requires the Northern Ireland Assembly to carry out reviews of both sets of arrangements by 1 May 2012. All this has been foreseen for some considerable time.

The present Session of Parliament, unprecedentedly for many years, is not short of legislative time. Your Lordships' committee expressed the view in a number of previous reports that, as a matter of general principle, Bills which deal with issues of constitutional significance should be published in draft and subject to pre-legislative scrutiny. The Northern Ireland Bill seeks to legislate on matters of constitutional significance. It amends the Northern Ireland Act 1998—a piece of legislation described by the Appellate Committee of your Lordships' House as "in effect a constitution" for that part of the United Kingdom. In addition to the devolution framework, the Bill deals with judicial appointments and removals, and the role of Ministers in that process.

When the Lord Chancellor gave evidence to the Constitution Committee on 28 January this year, he was asked whether there should be a constitutional convention that any Bill which carries constitutional change of any significance should automatically be subject to pre-legislative scrutiny. Jack Straw told the committee that,

"that will be the rule unless there is some emergency, which I do not anticipate, which would mean that you would have to rush the whole thing through".

In the present case there has been no opportunity for pre-legislative scrutiny of the draft Bill by the United Kingdom Parliament. Moreover, the Bill has had a very expedited passage in the House of Commons.

Many Bills relating to the Northern Ireland peace process and devolution settlement have similarly been introduced to Parliament on an emergency basis, with Parliament being called on to give legislative effect to negotiations. Your Lordships' committee is currently engaged on an inquiry into "emergency legislation", broadly defined to include all Bills that receive a fast-track passage through Parliament. As part of this inquiry, your Lordships' committee is considering the reasons for and the constitutional implications of the practice in recent years of routinely giving Bills relating to Northern Ireland's constitutional matters expedited consideration by Parliament. We shall report to the House in due course.

The committee understands the political requirements for progress on the process of devolution of policing and justice functions to Northern Ireland, but it is not clear that there is an emergency situation that in and of itself justifies the departure from the principle that Bills of constitutional significance should be subject to pre-legislative scrutiny in the United Kingdom Parliament. Nor is it obvious that circumstances exist that justify this Bill being put on a fast-track legislative process in the House of Commons and the House of Lords. The Bill is in effect amending the constitution of the United Kingdom, and such changes should be made only after careful deliberation.

The Bill also makes proposals for the Prime Minister's future role in judicial appointments in Northern Ireland, which are analysed in the committee's report and which I shall not delay your Lordships by reciting. In March 2008, the draft Constitutional Renewal Bill proposed removing the Prime Minister from the process of appointments to the United Kingdom Supreme Court. In the new constitutional settlement that has emerged from the Constitutional Reform Act 2005, if a Minister in the United Kingdom Government is to be made responsible for judicially-related matters, that Minister should surely be the Lord Chancellor. The constitutional role of the Lord Chancellor in relation to the rule of law is expressly recognised by Section 1 of the 2005 Act. Under Section 3, he has a statutory duty to defend the independence of the judiciary, distinguishing him from other Ministers whose duty is to uphold that independence. Under Section 17, his distinctive oath of office requires him to respect the rule of law and defend judicial independence.

While the committee accepts that there is a need for Ministers to be involved in both the appointment of and any steps to remove a member of the senior judiciary in Northern Ireland, we question whether the Prime Minister, rather than the Lord Chancellor, should have a role in these processes. I would expect this matter to be re-examined at further stages of the Bill.

I am grateful for the Secretary of State's letter in response to the committee's report, which I received today. It will be studied carefully by the committee before we return to further consideration of the Bill on Wednesday. Personally, I was not impressed by references to future unamendable Orders in Council and a so-called purdah period for the European elections, precluding more lengthy consideration of the Bill in the United Kingdom Parliament. The committee will also study carefully what the Lord President says before we return to further proceedings on Wednesday.

Photo of Lord Bew Lord Bew Crossbench 4:52 pm, 9th March 2009

My Lords, like other noble Lords, I begin by expressing my sorrow and grief at the attack at Massereene barracks on Saturday night. We thought that we had seen an end to that type of event in Northern Ireland, and it is shocking to see its return. Like other noble Lords, I express my sympathy to the families who have been affected so cruelly.

I also thank the Lord President, the noble Baroness, Lady Royall, for the way in which she has offered a great deal of consultation and help to noble Lords in coming to decisions about this legislation. The legislation has been rushed, and I have been very grateful indeed for the way in which she has attempted to mitigate the effect of that haste. Like other noble Lords, I think that we have all benefited from those discussions.

This is a Bill like no other. It comes with the support of the Government, but in a sense that is almost not the important thing. It comes with the support of the First Minister and the Deputy First Minister of the Northern Ireland Assembly. It is the basis on which normal business in the Assembly was resumed this autumn and the stand-off that had been inhibiting the work of that Assembly came to an end. It is therefore very difficult indeed for this House to treat it in any other way but with great respect. One might almost say that that which Peter Robinson and Martin McGuinness put together let no man put asunder.

The Bill also has its roots in the negotiations going back to 2003 that affect the Northern Ireland peace process. From that time onwards, for good or for ill, the concept of the devolution of policing and justice was intimately related to commitments given by the Provisional IRA on the decommissioning of its weapons. Whether it was wise for that issue to be introduced in that way is entirely another point. We are now stuck with this five or six years later.

We must bear these realities in mind, therefore, when we discuss this legislation. None the less, some observations are appropriate and made even more pressing by the events of the weekend and, indeed, the political arguments in Northern Ireland that pre-dated the murders at Massereene. As the Government rightly say, this Bill is designed not to bring in devolution but to provide parliamentary sanction for a new model that the Deputy First Minister and the First Minister have agreed they might be able to employ to bring about the devolution of policing and justice. It is therefore related to that project and with respect to the project of the devolution of policing and justice as a principle that I wish to make a few observations.

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 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.

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.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords) 5:04 pm, 9th March 2009

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".—[Hansard, 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?

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:

"confidence is about more than who will operate these structures; it is also about the funding of policing and justice".

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".—[Hansard, 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.

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.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament 5:12 pm, 9th March 2009

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, 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.

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.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office) 5:25 pm, 9th March 2009

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 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.

The Northern Ireland Bill is intended to give legislative effect to a political agreement between the Northern Ireland First and Deputy First Ministers and the recommendations of a committee of the Northern Ireland Assembly, which the Assembly have debated and endorsed. It faithfully reflects these agreements and recommendations, which, in response to the noble and learned Lord, Lord Mayhew, may have something to do with the drafting of the Bill. The recommendations are aimed at paving the way for the future devolution of policing and justice. The Government have to be ready to move forward the parts of the process that are within our gift as quickly as possible. It is crucial that it is not the UK Government or Westminster who are seen to be preventing progress on this issue, but that the political process continues at the pace set by Northern Ireland's elected representatives. To leave open the possibility of completing the remaining legislative steps in the devolution process during the period between now and the Summer Recess—that is not to say that that timescale will necessarily be used—it is necessary for the Northern Ireland Bill to receive Royal Assent by mid-March. It would not have been possible to publish the Bill in draft or to make it subject to pre-legislative scrutiny and to meet this timetable, although I hear and respect the views of the noble Lord, Lord Goodlad. However, it is fair to say that many elements of the Bill—for example, those dealing with the new departmental model—have been debated in detail by the Assembly.

The noble Lord, Lord Glentoran, suggested that the PSNI is not satisfactorily funded and, therefore, is not up to the job. The noble Baroness, Lady Harris, asked for my assurance that the necessary funding would be made available. The Government have full confidence in Sir Hugh Orde, and in the Police Service of Northern Ireland, to rise to whatever challenge is before them. On devolution, we are committed to transferring the funding required to enable all aspects of policing and justice to operate effectively. It is not in the Government's interests to do anything differently.

My right honourable friend the Prime Minister has asked Jeremy Heywood to chair a group looking in detail at the funding situation for policing and justice in Northern Ireland. The group brings together interests from Whitehall and the devolved Administration in Northern Ireland to ensure that concerns about policing and justice budgets are properly addressed in the lead-up to devolution. I am confident that, at the point of devolution, we will be handing over a police service that is top rate, on top of the job, and properly funded.

The noble Lord, Lord Glentoran, asked whether, if devolved, the chief constable could ask for support from the SRR. National security remains an accepted matter, and, post-devolution, the chief constable will continue to be able to ask for specialist support from the military, as he sees fit, in the same way as other police services across the UK.

The noble Viscount, Lord Brookeborough, and the noble Lord, Lord Bew, also raised the question of national security. I cannot define the term "national security". It has never been defined in UK statute. However, I am informed that national security is generally understood to relate to the safety and security of the state and its people. I refer noble Lords to paragraph 17 of Schedule 2 to the Northern Ireland Act, which relates to security in Northern Ireland. I ask noble Lords to note that national security is not devolved in Scotland, where policing and justice are already devolved, and it will not be devolved in Northern Ireland.

The noble Lord, Lord Glentoran, expressed concern, as did the noble Viscount, about whether Sinn Fein supports the police. Sinn Fein's indication that it would give support to the police was a key factor in securing a return to a devolved Government in May 2007. The Government believe that this support is genuine. Indeed, over the past few days, we have seen Sinn Fein politicians speak out about the weekend's atrocities and urge the public to provide any information that they might have to the PSNI to assist their inquiries. I am sure that the House will endorse that same point made by the noble Baroness—that if anyone has any information relating to the atrocities, they must contact the PSNI. These people have to be brought to book.

Photo of Viscount Brookeborough Viscount Brookeborough Crossbench

My Lords, would the Minister therefore tell us whether Sinn Fein's remarks about the chief constable needing extra support were an indication of its support for the police?

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

My Lords, I interpret it as being supportive of the police, but I will have to read that carefully and may well come back to the noble Viscount.

The noble Lord, Lord Glentoran, asked if we met some criteria, which he stipulated. We have seen politics in Northern Ireland develop a position where all parties support peaceful democratic means and the criminal justice system. In relation to community support for devolution, that is one criteria set down by the First Minister and the Deputy First Minister in their November statement. It will be for the Northern Ireland Assembly to decide when the necessary confidence exists.

The noble Lord, Lord Smith of Clifton, has great concerns about the Justice Minister and that he or she should not be dismissed by a simple cross-community vote. The noble Lord is right to suggest that the justice portfolio is special, which is why we have provided for a series of alternative models for the structure of a justice department. However, I do not agree that he is right to dismiss the cross-community vote as simple, as if it is a basic norm. It is not. It is a special arrangement put in place by the Belfast agreement which said that, as a safeguard, key decisions in the Assembly would be taken on a cross-community basis. It is not a routine measure, but a safeguard.

The noble Lord suggested that it would be unfair for members of the Alliance Party to be voted out by a system that did not count their votes as equal to those of designated unionists or nationalists. That is to misunderstand the origins of the cross-community vote. It was to ensure that, unlike in the past, it would no longer be possible for one side of the community to impose measures on the other side, against their wishes. It was a safeguard designed to meet the particular circumstances of Northern Ireland which derived from its history. It is not a routine tool but designated for special circumstances, such as the appointment and removal of a Justice Minister.

This Bill is not the place to unpick the safeguards of the Belfast agreement. If the current definitions of cross-community support were acceptable in 1998, at a time when trust was in its most embryonic state, the Government believe that it remains right to have that test today.

The noble Lord, Lord Morrow, was right last week to sound a note of caution about devolution, in view of the atrocities at the weekend. However, we cannot and must not allow the evil actions of a few to derail the peace process, which is so strongly supported and desired by the vast majority of the population and its elected representatives. I am grateful to the noble Lord for clearly explaining what the Bill does not do. It is right that the Government will not and must not impose the devolution of policing and justice. This can happen only when a Motion for the transfer of powers has been moved by the First and Deputy First Ministers and approved by the Assembly on a cross-community basis. It will then be brought to this House in the form of orders.

Various noble Lords have asked me to ensure that adequate time is given to the debating of those orders. Adequate time will be given to the debating of those orders, and I will do my utmost to ensure that the orders are available well before the debate that takes place in this House so that noble Lords have an opportunity to consider them.

I hear and respect the views articulated by the noble Lord, Lord Maginnis, but do not agree with many of them. The noble Lord referred to the lack of discussions in Northern Ireland relating to the devolution of policing and justice under the votes in the Executive and the Assembly. The votes were taken, and the majority view was that the report from the Executive, which followed up the agreement between the First Minister and the Deputy First Minister, was acceptable and should be followed. That is democracy.

This Government, as I said earlier, are not complicit in any deal and are not working to any timetable. As I mentioned, the elected representatives of Northern Ireland, are driving the timetable here, not this Government.

In relation to the chief constable, as I said earlier, the Government have complete confidence in Hugh Orde. I know that his focus, and that of his officers, is on the safety of the people of Northern Ireland and their having great confidence in the PSNI.

Photo of Lord Maginnis of Drumglass Lord Maginnis of Drumglass Crossbench

My Lords, it strikes me that law-abiding people cannot have confidence where a chief constable and his constabulary suggest that they will not continue with investigations into what until recently was Britain's largest bank robbery, and perhaps still is, and where the murder of Mr McCartney and the Omagh bomb are to be put on the back burner. What faction within Northern Ireland are they put aside in order to please?

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon President of the Council, Privy Council Office, Leader of the House of Lords and Lord President of the Council (Privy Council Office)

My Lords, I think with respect that the noble Lord misunderstands the chief constable's statements on these issues. There is a world of difference between suggesting, as does the noble Lord, that the police have abandoned the investigations and explaining, as did the chief constable, that the police have followed all their existing leads as far as they can and that taking their investigations further requires new evidence. The police remain as committed as ever to bringing the perpetrators to justice and I know that noble Lords would support me in asking, as I did earlier, that anyone with information, relating not just to the atrocities this weekend but to the previous serious attacks, should bring it forward to the police precisely so that they can continue with their investigations and the perpetrators can be brought to justice. The noble Lord suggested earlier that he has not had the opportunity to discuss some of these issues with the Secretary of State, but, as he knows, I am happy and willing to facilitate such a meeting.

I am grateful for the views expressed by the noble and learned Lord, Lord Mayhew, and his general support. I shall read his views carefully, especially those in relation to the Attorney-General, because he is an esteemed former Attorney-General. I completely agree that the response to this weekend's atrocities must be calm and well judged, and that we must be resolute.

I entirely endorse the desire of the noble Lord, Lord Browne, to ensure that there will be confidence in future to allow the early devolution of policing and justice to the locally accountable legislative assembly. This must not be a mere aspiration; we have to make it a reality.

The noble Viscount, Lord Brookeborough, raised a series of issues, a couple of which I have dealt with. I should stress that the orders that I mentioned earlier will of course be affirmative. The noble Viscount suggested that the weapons used should have been decommissioned. The source of those weapons is an intelligence matter, and it is the long-standing practice of successive Governments not to comment on such matters. However, more generally, the IMC has made it clear that small quantities of weapons were held back by local groups in defiance of the instructions of their leadership. The noble Viscount raised the use of intercept evidence and its disclosure to the defence. He may be aware that the law in Northern Ireland is the same as that in England and Wales in both these areas. My right honourable friend the Home Secretary has established a programme to look at the intercept-as-evidence issue following receipt of the Chilcot report last summer. That work will reach its conclusion in the coming months. On disclosure, there is an important principle of ensuring a fair trial. However, if there were clear evidence of a problem, I am sure that this is an area which would be considered further. The noble Viscount asked also about the disparity between prosecution and defence disclosure under the 1996 Act. The arrangements for prosecution and defence disclosure, which are the same in Northern Ireland as in England and Wales, were amended recently by the Criminal Justice Act 2003. I note the noble Viscount's comments on ensuring a level playing field in relation to disclosure in the context of an overall right to a fair trial. The disclosure provisions of the Criminal Procedure and Investigations Act 1996 are kept under review, and I shall of course convey the noble Viscount's concerns. On the disclosure arrangements for the Omagh trial, the conduct of individual trials is a matter for the independent presiding judge, which includes applications of the disclosure arrangements. As I mentioned, the legislative basis for disclosure was reviewed as recently as 2003.

The noble Lord, Lord Goodlad, rightly brought to our attention the report of his excellent committee. I shall respond more fully to the report in Committee if I may. I also very much look forward to giving evidence to his committee as it looks into emergency legislation. The report asks about the role of the Prime Minister in relation to senior judicial appointments. The Northern Ireland Bill will essentially remove the post-devolution roles of the First Minister and Deputy First Minister in these processes, which were set in the Justice (Northern Ireland) Act 2002. The legislation under which appointments and removals are currently governed, the Judicature (Northern Ireland) Act 1978 and the 2002 Act, already provide significant roles for the Prime Minister. The Northern Ireland Bill does not substantively change the role of the Prime Minister as set out in the 1978 and 2002 Acts.

The noble Lord, Lord Bew, raised many interesting issues. He is right that it is natural that all parties here and Northern Ireland approach devolution issues nervously. It is therefore quite extraordinary, as he said, that we have moved so far forward and so fast. I must read his contribution with care. I think that I have dealt with many of the issues raised by the noble Baroness, Lady Harris.

The noble Lord, Lord Kingsland, is absolutely right that we have to ensure the best possible deal for devolution and to get it right: it is our duty to get it right. These are constitutional issues and we must have confidence that we are acting correctly. I am grateful for the noble Lord's support for the changes in relation to the Lord Chief Justice.

With regard to the perceived politicisation of the appointment of the Attorney-General, it is clear that the appointee must be an excellent lawyer with the ability to put the law first. The First Minister and Deputy First Minister will of course be from different parties, so we can be confident that the person in question will be independent, of excellent reputation and not political.

The Justice (Northern Ireland) Act 2002 on the relationship between the Director of Public Prosecutions and the Attorney-General provides that it should be consultative. That was seen by the criminal justice review as the best way of ensuring visible independence of prosecutorial decisions. As a matter of law, a statutory duty of consultation requires meaningful consultations. It ensures that a wide range of matters will be discussed, including the code of practice for prosecutors. The Attorney-General, under Assembly standing orders, will be able to speak in the Assembly and answer questions. The DPP will also be answerable to the Assembly for financial and administrative matters, but of course the DPP can consult the Attorney-General who himself will be able to answer questions in the Assembly.

We look forward to discussing and debating these issues further when amendments tabled by noble Lords are before us. I am extremely grateful to the noble and learned Lord for informing us that he will not be pressing his amendments to a Division. I thank noble Lords for their considered contributions to today's debate. I welcome the concern expressed because it is right and it is our duty to be honest, but I also welcome the active interest that noble Lords continue to take not only in this specific issue but in Northern Ireland in general.

I apologise for the fact that not all noble Lords were aware of the meeting that took place earlier today. There will be a meeting on Wednesday and I shall strive to ensure that all noble Lords are informed accordingly.

Bill read a second time and committed to a Committee of the Whole House.