Debate resumed:

Order. We shall resume the debate on the Department of Justice Bill. I ask Mr Alex Maskey to continue with his remarks.

Go raibh maith agat, a Cheann Comhairle. I want to pick up briefly from where I left off, which was the question of d’Hondt and the SDLP’s argument of its entitlement to the justice Ministry, if it were established.

In an intervention, Mark Durkan said that his party could go to the Secretary of State to seek provision for 11 Departments, and so on. My argument, which is essentially different to his, is that there must be agreement to go to the British Secretary of State to seek anything. Mr Durkan presented his argument in such a way that suggested that people could go to the Secretary of State to ask for anything. I invite him to seek that agreement.

We can go to the Secretary of State.

Mr Durkan made that point already, and I am responding to it. It is easy for the Member to throw out a comment about being able to go to the Secretary of State. However, he and his party have failed consistently to explain who they will go with and who they will reach agreement with to do that.

Clearly, they will not reach agreement on key issues with the Ulster Unionist Party, for example. I do not know what other party the SDLP would seek to reach agreement with. It does not appear to have been able to put together a package that shows that it, or a collection of parties, could secure a vote in the House and thereby go to the Secretary of State, or that it could reach any other agreement for that matter. Therefore, the essential issue remains that —

Will the Member give way for clarification?

I am sorry; I have taken some three interventions already. The Member will have plenty of time later to clarify his position.

And I will.

He can all right. Talk is cheap, so the Member must clarify whom he would reach agreement with to secure all those great and wonderful things that he wants.

I want to recap on a number of points. First, I want to return to the sunset clause, which my party considers to be both a vital protection and an opportunity. My party’s intention is to establish a justice Department for beyond 2012. I am sure that other parties are also committed to that.

If, during the intervening period between the justice Department’s establishment and 1 May 2012, the experience has been positive, the sunset clause, which my party hopes will be agreed, offers the Assembly the opportunity to consider what will occur beyond May 2012 in a positive, mature and rational light and to establish a permanent justice Department that is fit for purpose and that has all the necessary protections.

I look forward to that opportunity. I believe that the vast majority of the public want that to happen in the positive light that I described.

The SDLP keeps trying to hammer home its entitlement to the Department of justice under d’Hondt, but it has no such entitlement. There is no provision for 11 Departments and, therefore, no provision to run d’Hondt from one to 11. If we were to secure 11 Departments, the essential argument remains that d’Hondt would be run from one to 11. Does anyone suggest that the SDLP has the God-given right to take the eleventh Department and that all the other parties would sit back and wait until they did?

[Interruption.]

With respect, I have already taken numerous interventions.

Order. Let the Member finish.

The SDLP’s repeated position is that it has the right to the next Department. It does not. If, as I wish would happen, 11 Departments were to be established here this afternoon through running d’Hondt, I would love, by 5.00 pm, to be putting Sinn Féin’s hat into the ring for the justice Department. At least two other parties are ahead of the SDLP in the queue, and they would have a serious argument to make on their behalf.

Sinn Féin is determined to secure the transfer of policing and justice powers and pursues that aim relentlessly. In the first instance, powers should be transferred into the hands of elected representatives from here. We like the idea of, and are totally committed to, d’Hondt, but there must be transitional arrangements. Sinn Féin was involved in negotiations, although other parties, particularly the SDLP, seem to think that they were the only ones involved. The SDLP must have been talking to itself in 1998 because, from what it says, no one else was involved. Sinn Féin is wedded to the necessity of power sharing.

Is it the ambition of the Member, or his party, to hold the Department of justice at some stage?

I thank the Member for his question. Why would any party with a mandate deny itself the opportunity to take responsibility for any area of governance? I presume that Mr Kennedy’s party — the Ulster Unionist Party, UCUNF, or whatever its name may be this afternoon — would consider taking any Department to which its mandate secured it the right. I look forward to a time when all parties, including mine, will have the opportunity to consider each Department before deciding which to select under d’Hondt.

The absolute inclusion of all parties is essential to the political dispensation in which we are all involved, and that brings me to my next point. Mr Attwood referred to the process of exclusion, but Sinn Féin is committed to a process of inclusion. That is why there is a power-sharing Executive: the parties in the Executive share power. The difficulty for the SDLP is that it does not occupy a lead position in OFMDFM, but that is simply the democratic outworking of the last election. That may change: who knows? As the SDLP is not in a lead position, it falls to Sinn Féin and the DUP to work their way through the issues by showing leadership and working inclusively with the other parties. Mr Durkan, the outgoing leader of the SDLP, is aware of that. Sinn Féin and other parties have spoken with the SDLP about the issue, and SDLP Members sit on the Assembly and Executive Review Committee.

In trying to keep the discussion to the amendments and clause 2, I have shown some latitude to all Members. However, I detect that some Members are straying outside the amendments to the justice Bill and, specifically, at present, support for, or opposition to, clause 2. I remind Members that, as far as possible, they should keep to the subject of the debate, which is the Department of Justice Bill.

I thank the Ceann Comhairle for his reminder to Members; I will do my best to honour that commitment. I do not wish to recap to ensure that I clarify all the relevant points.

We support the sunset clause because it is very important, and we clearly support clause 2 and the Bill as a whole because we are focused on getting policing and justice powers transferred into the hands of locally elected representatives. The arrangements in clause 2 are interim and transitional, and that is verified and underscored by writing a sunset clause into the Bill that will bring those arrangements to an end by May 2012. Sinn Féin supports and will continue to support the Bill as it stands because we believe that it represents the best efforts of people to ensure that powers are transferred as soon as possible.

The time frame mentioned in some of the amend­ments has been dealt with earlier. It will come up again later, so I suppose that we can deal with it then, too. As far as Sinn Féin is concerned, the Bill does not require a time frame. Although some people want a time frame to be included, the Bill is an essential piece of enabling legislation that does not require one. The Bill needs to be passed sooner rather than later, because it is a necessary element of devolution. People who argue, inside and outside the House, in favour of powers being transferred must explain how voting against the Bill and working actively against it will serve that need.

Our party supports the Bill, and we oppose the amendments unapologetically in our relentless pursuit of having the powers of policing and justice transferred to locally elected representatives as soon as possible.

I support the Bill and oppose the amendments. The devolution of policing and justice is a positive step for Northern Ireland. It brings potential benefits, because it allows much closer collaboration and co-operation among the existing Departments and the Executive on a range of issues relating to policing and justice. My party believes that it should happen as soon as possible.

However, we have never set artificial deadlines for the process, because we recognise that the issue is sensitive in respect of political and community sensibilities. We want our approach to be constructive because we want people in the community to have genuine confidence — not the kind of confidence that is about setting up a series of hurdles for people to jump — in the House and in the Executive to competently and capably deliver on the issues. We have tried to be constructive from our position outside the Executive, and I am trying to do the same now.

I wish to speak about the amendments and the picture painted of them. First, as to whether clause 2 should stand part of the Bill, the Alliance Party has never made any secret of the fact that it believes that the Executive should not have been formed using the mechanism laid out in the Good Friday Agreement. That was not our first choice, and we have been very open and honest about that.

We support moving from a mandatory coalition to a voluntary coalition in which Members negotiate a Programme for Government and work together on it. That would create a level of cohesion and co-operation in the Executive and tie Members to a programme in a way that the mandatory coalition has not done. We have been open and honest in saying that we would prefer that. However, we respect the fact that some Members are not comfortable with that or confident that it would work. Some view voluntary coalition as a mechanism to exclude them, while others think that it is a mechanism that would benefit them by excluding others. My party believes that voluntary coalition is not about that; it is about trying to find a system that works.

We have made no apologies for the fact that we are not and never have been wedded to d’Hondt. We view it simply as a mechanism to deal with proportionality. However, it is only one of many mechanisms that can do that. It can be argued that, in many cases, it is not the best mechanism for dealing with proportionality. The Good Friday principles underpinning the issue are inclusion and proportionality, not d’Hondt, and they can be achieved in a range of ways. We are again in danger of making the mechanism the principle, and that is a very foolish thing to do.

I aspire to the day when we no longer need the d’Hondt mechanism for any of our Ministries and when we can move away from the type of mandatory coalition that we have currently. Therefore, I welcome any opportunity to demonstrate how other mechanisms can deliver. I believe that the Bill presents such an opportunity.

It is not about who gets the job of justice Minister; it is about how a person gets the job. The Bill provides a better mechanism for electing a Minister than that which we use at present.

I am not going to shed any tears if the person who is appointed justice Minister is appointed on the basis of a cross-community vote. However, I am realistic enough to know that clause 2 is not some sort of Trojan Horse by which we will be able to speed up getting voluntary coalition into the Assembly. Much as I would like to see that happen, and much as I wish that that were the case, I do not believe that to be the reality. However, as political fixes go, this is preferable to those that we have chosen in the past. Therefore, I have no difficulty with clause 2 standing part of the Bill.

Alex Attwood talked about the rules of democratic inclusion. However, which ones was he referring to? The d’Hondt mechanism is only one of many ways by which to achieve democratic inclusion. I find it quite strange that when we talk about the rules of democratic inclusion, we talk about it in those broad terms. The SDLP is wedded to the d’Hondt process. It amazes me that an obscure Belgian gets so much attention every time we debate any issue in the Chamber.

The reality is that the SDLP has acknowledged that there may be other, better means of inclusion. Through the Equality Commission, the SDLP challenged Lisburn City Council for allegedly breaching equality rules because it went beyond other inclusion mechanisms so that it could use d’Hondt. I do not disagree with the position that the SDLP has taken on that matter. However, it raises the question that if other methods of inclusion are good enough for other places, why is the SDLP so wedded to the d’Hondt mechanism when it comes to appointing a justice Minister? There is a contradiction in the SDLP’s position on the d’Hondt process.

The SDLP’s concern is that clause 2 is a departure from the provisions of the Northern Ireland Act 1998. Those provisions are based on the agreement. If there is a review of the agreement, and if parties agree to a different form of inclusion according to mandate — such as the Sainte-Laguё method — that mechanism will become the rule. However, the principle of the agreement remains inclusion according to mandate. Clause 2 is a departure from inclusion according to mandate and is a departure from the existing Act.

I will raise a number of issues in response to that.

The first departure from the Good Friday Agreement is having an extra Department. If we are to devolve policing and justice —

It does not have to be an extra Department.

If we are to devolve policing and justice, it looks, at this stage, as though that will require an extra Department. If we are to redraw the Departments, that is another departure from the Good Friday Agreement. Furthermore —

No, it is not.

Furthermore, Mr Durkan specifically said that clause 2 would be a departure from inclusion on the basis of mandate. However, nobody knows who the justice Minister is going to be. There is no guarantee that it will not be someone who is being included on the basis of mandate. Frankly, I think that people are getting ahead of themselves in suggesting otherwise.

I want to deal with the issues on amendment Nos 2, 3 and 4. I listened very carefully to Alex Attwood as he made the arguments in favour of those amendments. He did two things. First, he emphasised the likelihood of failure to agree a long-term solution by the deadline of 2012, and secondly, he emphasised the consequences of that failure. I will look at both those points, beginning with the first.

Alex Attwood emphasised the impossibility of finding agreement by 2012 on the future shape of a Ministry, and he purported that that was an argument for tabling his proposed amendments. On the surface, that argument has a certain ring to it, from our perspective. Mr Attwood said that there has been a series of issues that the Executive failed to reach agreement on and that that is evidence that they are not capable of reaching agreement.

That argument does not, however, bear close scrutiny for a number of other reasons. First, if we had followed that pattern in 1998, we would not be sitting here now. Secondly, if we had said that we would not move forward because the risk of failure was too great, we would still be where we were in 1998 and we would perhaps be even worse off.

We did not say that getting the UUP and the SDLP to agree thing in the future was the issue. We did not say that getting engagement between the UUP with Sinn Féin when the electoral tables were turned was a reason not to proceed with the process. We did not even say that the idea of getting the DUP and Sinn Féin to go into Government together, which was unimaginable at the time, was a good enough reason to stop the process. In such instances, instead of not embarking on the process, the answer is to carry out the process in a controlled way and to see it for what it is — a process. The process will evolve over time in the context and circumstances that present themselves, and it is dependent on the work that will be done over the next 30 months. I cannot accept the argument that Executive failures are a reason for stopping the process of devolution.

The other argument was about what will happen if we fail to agree by May 2012. For me, such a scenario raises a much deeper question, which was not touched on. If we cannot agree on what happens with the Ministry for policing and justice by 2012, much more significant questions about the future of the institutions will be raised. We all realise that. There is more import and more pressure to reach a solution by 2012. It is very simplistic to say that we cannot do it. I do not buy into that argument, because there is too much at stake if we do not agree a solution.

The third thing is this; if it is so inconceivable that parties in the House are capable of reaching agreement on the issue in 30 months, how come we have an interim agreement that people are happy to sign off on? The logic is that, if people can sign off on an interim agreement, it is not beyond their capabilities to sign off on a longer-term agreement. I cannot follow the logic of the argument that we cannot reach agreement.

Mr Attwood then argued about the consequences of failure. There seems to be conflict in his argument, because its logic was very contorted. Mr Alex Maskey highlighted that in his speech. In great depth and with great vigour, Mr Attwood painted the most apocalyptic scenario possible for May 2012. He used the word “catastrophic” twice. I listened carefully to his description of what could happen in 2012, and it conjured a picture in my mind of prison doors being left open, prisoners wandering onto the streets and various other types of madness and mayhem. All of that was based on the assumption that the Assembly would fail to agree.

Mr Attwood then said that Westminster would not allow such a scenario to happen. According to his legal advice and in his view, an Order in Council would come from the Secretary of State to stave off the apocalypse. At that point, I was able to draw breath again and feel much calmer about the situation.

After posing the grave and potentially catastrophic consequences of a failure to agree, Mr Attwood reassured us that there will not be a cataclysmic meltdown and that there is a fallback position. His concern seemed to switch from the apocalypse ahead to his suspicion that the First Minister and the deputy First Minister know that there is a fallback position but do not want to articulate it in the Assembly. That is what I am not clear about. I am not sure that it matters whether people know that there is a fallback position, because, any time between now and 2012, legislation and amendments to deal with a likely meltdown could be made in Westminster. Frankly, it is inconceivable that the Government would allow our Prison Service to implode, for example. Therefore, I cannot understand the logic of an argument that states that, on the one hand, there will be cataclysm and then states that there will not and that, because people will not admit that, we should vote against the Bill in its present form.

Those who supported and passed the legislation that provides for the sunset clause in May 2012 have literally legislated for failure. We did not introduce the concepts of failure, collapse and dissolution. Members legislated for that because it was the best interim solution that they could come up with. Those who supported it, particularly Sinn Féin, have made a virtue of saying that there is no fallback position. We believe that there could be a fallback position that could be used by the British Government. However, it may not work, because it depends on votes in the House.

I will address several aspects of that intervention. First, the matter seems to have been distilled down to the SDLP trying to point out that what Sinn Féin has said all along is incorrect. That seems more like an attack for party political purposes than dealing with concerns about the stability of the justice Department. I suspect that such logic underpins a lot of what we are listening to today. That is part of the difficulty.

I do not understand how anyone can believe, based on their legal advice, that there is a fallback position and, at the same time, articulate an argument that says that there is no such position. It is completely illogical, and the argument does not stack up. Regardless of whether the fallback position exists at the minute, it could be created at any point in the future. Therefore, the idea of apocalypse does not add up. The SDLP has argued that it is, in essence, trying to avert crisis and crisis-proof the legislation, yet it has proposed a series of amendments that appear to be designed to precipitate a series of mini crises in the system.

No.

The Member beside me says no. However, putting time frames, deadlines and demands on such matters and introducing additional sunset clauses into the legislation has the potential to create more of a crisis.

Amendment No 1 sets a deadline. Everybody in the Chamber recognises that the issue will be subject to detailed and sensitive discussions in which everyone in the House has an interest. I agree entirely with Members who feel that, for whatever reason, they do not know all the facts. They should know all the facts, because this is a matter of importance, not only to parties represented in the Executive but to those that are not represented. The Alliance Party’s voters need to have confidence, too, as do those who vote for the SDLP, the Ulster Unionists, the DUP, Sinn Féin, the Green Party, the PUP and others who sit in the House. People need to have confidence that the system will work, because it is a serious matter. We do not take issue with any of that. However, creating deadlines is a way to heap on pressure, and it is deeply unhelpful. I suspect that it exposes the SDLP’s need to do down any proposals that come from the Executive. That is unfortunate.

I have read amendment Nos 2, 3 and 4 several times. I listened carefully to Alex Attwood’s speech, in which he proposed the amendments, to try to get to the bottom of what they would achieve. That remains unclear. The amendments seem to force the First Minister and the deputy First Minister to make written and oral statements to the House within seven days, after which there would be a vote.

That is correct.

The Member has provided helpful clarification from a sedentary position. That is what I thought that it meant. Therefore, I am unclear about the point of the amendments. The seven-day requirement seems to place potentially unrealistic and silly deadlines in the Bill in the hope that somebody will drop the ball, not jump through the hoop, and revert to d’Hondt. Moreover, it seems unnecessary, because no other legislation that has been passed in the House has proposed that somebody has to report within seven days. Indeed, if people want the First Minister and the deputy First Minister to explain — I think that is the word used in the amendment — their view on the issues, they can do so at any time now. They do not have to wait until the Bill is passed. It does not change anything. I cannot get my head around that: it does not actually change the situation.

(Mr Deputy Speaker [Mr McClarty] in the Chair)

4.00 pm

The Member said that no one has ever proposed here that statements should come from the First Minister and deputy First Minister, but I recall that her party moved amendments to the Financial Assistance Bill that would have required that statements be made by the First Minister and the deputy First Minister in relation to the implementation of that Bill and any actions flowing from it.

I said that I did not recall a piece of legislation being passed anywhere that required statements to be made within seven days. It is clear that Mr Durkan was not paying attention, because our proposal was that the First Minister and deputy First Minister should report to the Assembly on an annual basis. It was an ongoing clause, not simply another hurdle that they had to jump over after commencement with a once and once only explanation. The comparison does not stack up, because there was substance to our amendment. There is no substance to the SDLP’s amendments.

I will move to the issue of clarification and explanation. The First Minister and deputy First Minister are in the Chamber, so perhaps when they respond they will be able to give clarification. However, my reading is that they could come in and provide us with an explanation. It might not satisfy us, but such an explanation, written or oral, would not change anything. They would simply have to provide the explanation in order to tick the box. That achieves absolutely nothing, as far as I can tell. I am slightly bemused by that, but on reading the amendments together, it is clear that they are designed so that, assuming that the SDLP’s arguments in relation to clause 2 are lost, another opportunity is created to revert to d’Hondt after commencement. The SDLP’s argument is not about trying to get clarity, because that can be obtained at any time. [Interruption.]

Mr Durkan has been allowed a significant number of interventions, but nothing seems to satisfy him, because as I try to make my contribution to the debate, he is constantly chirping in my ear, which is very distracting. I have been generous with the Member in allowing him to have interventions. I wish that he would either stand up and make his point or allow me to make mine.

Mr Attwood made a long and meandering speech containing a lot of convoluted logic, but eventually, at the end, we got to the core of the issue. He said that the SDLP felt entitled to the justice Ministry and that that entitlement would not be guaranteed under clause 2. There were those who, in previous interventions, said that they were happy to run d’Hondt for all 11 Departments, but Mr Attwood said that he objected strongly to the SDLP’s being excluded from the process to appoint a justice Minister. He raised the issue that the DUP did not see the SDLP as fit to do the job and that his party was being blocked as a consequence of Sinn Féin’s position. There was more to Mr Attwood’s speech than the issue of being nominated for any Ministry.

However, while the justice Ministry would not be guaranteed under clause 2, neither is it ruled out. It is not inconceivable that the SDLP could be nominated and voted through on a cross-community basis. The assumption that it will not happen is an SDLP assumption; it is not shared by anyone else. To be fair, Mr Attwood delivered a heart-rending plea for the SDLP to get the justice Ministry, which almost brought a tear to my eye. He said that his party had been slighted and that its contribution to policing and justice had not been fully recognised.

The Alliance Party could make an equally heart-rending plea: we could say that throughout the years when things were very difficult in Northern Ireland, coming from a cross-community background and representing a difficult constituency, the Alliance Party maintained its links with the police service and sat on the Police Authority when others would not join it and would not do that job. It is a bit rich for people to expect sympathy from those of us who weathered the storm when it was very difficult to do so. From that point of view, I do not have a lot of sympathy on that point. However, I am less concerned with who the Minister for justice will be, what party he or she represents or where he or she is from, than I am about what a Minister for justice will do for the people whom they are elected to serve. That is what matters: it is the programme that a Minister for justice will follow and what that person will achieve that is of consequence. I cannot see any reason why any party here would be guided simply by self-interest.

Other Members have raised the issue of d’Hondt in relation to clause 2. If an eleventh Ministry were to be added, various meetings with the Secretary of State notwithstanding, d’Hondt would have to be rerun for all Departments. That is clearly stated in the Northern Ireland Act 1998. If that were the case, I do not think that anyone believes that policing and justice would still be on the table when the SDLP got to make the fifth choice, let alone the eleventh. It would say something fairly skewed and malign about other parties in the House if it were still on the table at that stage.

I have some sympathy with Danny Kennedy on that point. He said that the debate was surreal at times. I agree; if we think that policing and justice can be delivered by any means other than ongoing political dialogues and agreement, we are fooling ourselves.

If the mechanisms that were used in 1998 were sufficient for this task and could create the required confidence, I suspect that they would have been used by now. That is not the political reality of this situation, and we need to wake up and accept that.

I am disappointed that the SDLP seems to oppose the devolution of policing and justice unless it benefits them either directly through that Ministry, or indirectly by obtaining a second seat in the Executive. In an intervention to Alex Maskey earlier, the SDLP leader —

The SDLP is fully committed to the devolution of policing and justice, without conditions. We are fully committed to that, and we have made that plain. I do not know how I can emphasise that point more.

Perhaps if the SDLP had voted in favour of the Second Stage of the Bill, that would have made it clear. The issue there was the principle of the devolution of policing and justice. [Interruption.]

Mr Durkan is again interjecting from a sedentary position. However, in an intervention to Alex Maskey’s speech, he walked us through the process at Westminster very carefully, and explained how he could vote in favour of a Bill at Second Reading and table a series of amendments in Committee. One should do the equivalent in these circumstances.

The implication of supporting the Bill at Second Stage was that one supported the principle of the devolution of policing and justice and, in particular, the creation of a justice Department in Northern Ireland. It is in order for the SDLP to propose an amendment to change the mechanism in the Bill and go back to d’Hondt; that is a logical position for them to argue from if they wish. However, voting in favour of the Second Stage of the Bill would still have allowed them to do that and, at the same time, would have made clear their support for devolution, whereas voting against it sent out, at best, a very dangerous, mixed message.

That is exactly the case. The normal way to deal with such a situation is to vote in favour of a Bill at Second Stage and to table any amendments at the next stage. If the amendments fall and people believe that the Bill as it stands is unacceptable, it is at that point that they should vote against it. One does not vote against a Bill at Second Stage if one is in favour of the principle of it, and the principle of this Bill is to devolve policing and justice powers and to create a Ministry of justice. Therefore, the SDLP’s position with regard to the devolution of those powers is unclear.

Mr Kennedy raised some concerns. He referred to the difficulties of the Bill creating a puppet Ministry. He was concerned that, if appointed in the way that was suggested in the Bill, the justice Minister would be a puppet. I do not believe that to be the case; however, I believe that there is a risk that the justice Minister could be a puppet.

The mechanism for appointing the justice Minister will make them no more or less of a puppet than any other Minister; it does not change anything. They would arrive at the Executive table with the same authority and ability to do their job. However, some issues could create the circumstances in which we would be dealing with a puppet Minister. The problem would, first, lie in the potential for a Minister to be removed by cross-community consent. We cannot deal with that, because it is dealt with in legislation that went through another place. It is not something —

Will the Member give way?

No; I will not give way on that point.

The way in which a Minister can be removed from office has the potential, in certain circumstances, to make that Minister more susceptible to pressure. However, we cannot deal with that issue, because our legislation is subordinate to the Westminster legislation, which sets out how any Minister would be removed from office. Indeed, the issue arises only when a Minister who is so desperate to hang on to his or her ministerial seat does not resist such pressure. Therefore, in addition to there being a poor mechanism for their removal, it would require a weak-willed Minister with no backbone for that situation to arise. If we are to subject someone to a cross-community vote in the House, I hope that we will pick someone of sufficient calibre and robustness and who has enough backbone to withstand that pressure.

Some Members from the smaller parties on the Executive wax lyrical about the potential for a Minister of justice to be a puppet, but it is dangerous to tread on such ground. It may not be possible to eject smaller parties’ Ministers from their ministerial seats under d’Hondt, but those Ministers have little say over their budgets. Sinn Féin and the DUP have the lion’s share of the votes and can make those decisions. Those Ministers do not have much control over what legislation they can bring to the House, because that is largely in the gift of Sinn Féin and the DUP as well. Some people might say that Ministers from the smaller parties in the Executive, even though they were nominated under the d’Hondt system, could be puppets if they do not have sufficient backbone to walk away when push comes to shove and when they feel that they have been maligned or mistreated.

The Member clearly does not listen to, or heed, the First Minister’s assertions that we have a four-party mandatory coalition. There are no puppets in this Administration, and it is not expected that there will be any. The Member seems to doubt that.

I was explaining the risk of someone’s becoming a puppet Minister. I would not be so rude as to suggest that any of the Ministers from his party or the SDLP is a mere puppet. If Mr Kennedy feels aggrieved by my comments, I may have struck a chord that I did not intend to. I was simply saying that it is possible for Ministers to be nothing more than puppets under the current system if they are willing to accept whatever the two main parties foist on them rather than running the risk of having to walk away. Unless Ministers have the backbone to walk away in such circumstances, they risk being puppets. The question for Ministers is whether they can be more than puppets in the Executive. I will leave it for Mr Kennedy to decide that on behalf of his colleagues.

The Member speaks in a very principled way and, indeed, almost claims that the Alliance Party is the only principled party in the Assembly. She has spoken very nobly about how neither she nor her party has any interest in who becomes the Minister of justice and says that the Alliance Party is concerned only with the outcomes from our having a Department of justice. The Alliance Party was prominent in describing itself as “the party of opposition”. Indeed, it was the opposition in the Assembly for many months. When Bills were debated, the Alliance Party was assiduous in proposing amendments and discussing them at great length.

However, it is noticeable that the Alliance Party has not proposed an amendment today. The Member has not used the word “opposition” at all and has described her party as being “outside the Executive”. A reasonable person might conclude that her position is less principled than before and that she and her party may have a vested interest in taking the stance that they are taking.

Order. Some private conversations are being conducted in the Chamber, and that is very distracting for me, not to mention for the Member who is on his or her feet. If Members wish to carry on their private conversations, I ask that they do so in the Lobbies or elsewhere in the Building. I also remind Members that interventions should be short and sharp.

Thank you, Mr Deputy Speaker. I appreciate both of those points. I will be clear about the issue that Mr O’Loan raised: I said that we had no selfish interest. I also said that we were less interested in who the Minister was and which party he or she came from than what they do. That is a principled position. If Mr O’Loan is asking me, as a politician and a member of the Alliance Party, whether I aspire to be in government, the answer is yes. If that makes me unprincipled, what does it make any other party that sits in this Chamber? What would it make me, other than a fool, if I were to say that I did not aspire to be in government for my party? Of course political parties have aspirations to be in government, but not at any price. That is what gives principle to our position. If Mr O’Loan does not understand that, I am not sure that there is much that I can say to help him.

Mr O’Loan also talked about proposing amendments. We propose amendments to legislation as and when we feel that they are required. However, we have articulated an argument today to explain why, based on our principles, we are happy with the legislation, which represents a move away from a mechanistic approach to the nomination and appointment of Executive Ministers and towards an approach that we prefer. Regardless of the outcome in respect of the make-up of the Executive, we would prefer that that body be formed voluntarily. We believe that this is a move in that direction, and that is a principled position.

On the issue of opposition, I am not in the sad and unfortunate situation of being confused about my role in this House. I am outside the Executive and I am part of the opposition. However, it would serve the Member well to talk to his party about what its role is, because it seems to be confused: it holds seats at the Executive table, and acts as opposition in the House. That is a much more confused and less principled position than the one that my party has adopted.

In conclusion, Members will be glad to hear, there have been many political fixes on the road from 1998 to 2009. Some of those were designed by the SDLP and the Ulster Unionists and others by the DUP and Sinn Féin. Some have further entrenched division in this Assembly, some have reduced it, some have moved us forward, and some have made it much more difficult for us to achieve progress. Some of those fixes have been based on good politics and others, frankly, have not. That is the reality of the situation. My party will look at each situation on its merits. The Bill provides for a move away from a rigid, mechanistic method of power sharing and towards a situation in which cross-community consent becomes more embedded in how we form an Executive. The Alliance party believes that that is a good thing, and, therefore, we support clause 2.

The Bill moves us to a situation in which the Minister of justice will be from Northern Ireland. There will be difficult decisions ahead on finance and many other issues, but the person who makes those decisions will, when they need a police officer, call 999 and go to the same people as me and the people whom I represent. That is a step forward, not a step back. That is a welcome change, and, therefore, we will support the Bill and oppose the amendments.

I am sure that there were some Members in the House to hear that Mrs Long was coming to a conclusion, Mr Deputy Speaker. Perhaps that has changed because you have called me to speak, but I will do my best to make a valuable contribution to the debate.

It is no secret that my party and I support the devolution of policing and justice. However, as we have made clear on many occasions, that requires community confidence. One element that helps to build community confidence is confidence in the institutions to which matters are devolved. That is why clause 2 is so important, not just to me and my party, but to the community that we represent.

During his lengthy contribution at the start of the debate, Mr Attwood talked about people needing to live in the political real world. He is not living in the real world if he believes that there is any other method of appointing a justice Minister that is capable of commanding community confidence in Northern Ireland — critically, unionist community confidence — other than that contained in clause 2.

In making a case for clause 2, I must stress that, as desirable as it may be for some of us, the Member who takes up the justice post, from whatever party they come, will not do so simply on the DUP’s say-so. The decision is not something that we wholly control. The Member who becomes Minister of justice must be able to command cross-community support in the Assembly.

I am sorry that the SDLP has such a slavish devotion to the principle of d’Hondt that, in its eyes, nothing else is feasible, viable or possible. However, as Mrs Long pointed out, there are ways other than d’Hondt by which we can get cross-community buy-in. I ask the same question that I did at Second Stage: how much more cross-community can we get than a clause and a method of appointment that requires support for an individual by a majority of Members on each side of the House? Somebody who can come through that test and command that support will surely also have wider support in the community.

As the First Minister, Mr Robinson, pointed out, the cross-community voting mechanism is used regularly in the House. We use it to appoint the Speaker and Deputy Speakers, and during the passage of Budget Bills. We can also invoke cross-community support mechanisms in the House if Members decide that a matter is critical. The point is that to have cross-community support for an individual, or any proposal in the House, is not so alien, so different or so abnormal. It is something that we do —

Will the Member give way?

Yes.

I note that the Member said that there is no method other than cross-community support in the House that will secure community confidence. In particular, he said, “unionist community confidence”. Therefore, I take it that he is rejecting a continuation of d’Hondt, which would lead to the SDLP’s taking the new justice portfolio.

Will the Member make it absolutely clear that it was not mere rhetoric when his party leader, the First Minister, said that he would reject the SDLP nominee? Was the DUP taking a determined and fixed stance to reject an SDLP nominee for Minister in the Department of justice?

I am not the first person to make the following point. Others have done so, but I will go as slowly as I can. I honestly do not think that the Member gets the point. The SDLP seems to have some sense of ownership of the justice position. If the SDLP were to get its desire, and if the position were subject to the d’Hondt mechanism, there would be absolutely no guarantee that the Member’s party would get it. However, we repeatedly hear that the SDLP is being deprived of the Ministry — that it is losing out.

That is not the case, because d’Hondt would be triggered for all Ministries, and it is highly unlikely that the eleventh pick would be the Department of justice. I would be very surprised if the Department were not chosen sooner.

In his intervention, Mr O’Loan used an interesting phrase: “continuation of d’Hondt”. There appears to be some confusion in the SDLP, because Mr Hamilton was asked specifically about opposition to the SDLP’s holding the justice Ministry — not any Ministry or the eleventh Ministry, but the justice Ministry — under a “continuation of d’Hondt”. However, others in the SDLP are saying that they are happy for the eleventh Ministry to be any portfolio, not just the justice portfolio. There seems to be confusion, and I cannot understand what the problem really is.

I concur with the Member. I am not sure whether the SDLP is upset about losing out on gaining the Department of justice or the Department for Employment and Learning, but it does not seem to register with that party that there cannot be a continuation of d’Hondt. D’Hondt does not work like that; it is a system that runs throughout. It is not possible to allocate 10 Departments and then go back for an eleventh; the process would have to begin again.

I may be able to clear up the confusion on both sides of the Chamber. There is no confusion, because, looking at the Hansard report, we have been able to confirm that if the d’Hondt process were to be run, the SDLP would be entitled to the eleventh Ministry, whatever it may be. The critical issue, Mr Hamilton, is that —

Order. The Member should refer all his remarks through the Chair.

The critical point is that, regardless of whether the SDLP looked for the justice Ministry, on 8 July 2009, outside 10 Downing Street, on the record and in front of cameras, Mr Hamilton’s party leader, the First Minister, said “I’m going to veto” an SDLP nominee for justice Minister. There is no confusion, because the issue was put on the table by the leader of the DUP, the First Minister, independently of whether or not the SDLP was entitled to the justice Ministry. It was your party that said explicitly on the record that it would stop us.

The Member has got very upset about that point, which reveals the truth behind it all. It is the loss of the chance to have the Department of justice in the hands of the SDLP that is at the core of everything that is going on today. It is not some high point of principle; it is the loss of that potential position for that party. Nobody from the Member’s party has been put forward, and, although I am not going to prejudge anything, whoever is ultimately selected to take on the Minister of justice post must be capable of commanding the support of both communities. As everyone knows, the position is of such critical importance and sensitivity that the person who is appointed to it must capable of commanding support from both sides of the community.

The Member quoted the First Minister — who I see is back in his place — but it is not only the First Minister who ruled out the SDLP for the Minister of justice role; the leader of the Ulster Unionist Party did so as well. In that respect, he is in good company. More than one unionist party is ruling out members of Mr Attwood’s party from taking the position. Community confidence is at the core of clause 2; it is absolutely critical that that confidence is there. In the past, my party has made it clear that it would not have confidence in Sinn Féin holding the post, and, although I have no particular insight into the mind of republicans, I am pretty sure that they are not too keen on any member of my party holding the position.

Do not take it personally.

I certainly do not take it personally.

In that respect — and this is where I have some confusion about the SDLP’s opposition to clause 2 — this is not some sort of unionist utopia that is being put forward. It is not what only either unionists, republicans or nationalists want; it is what both sides in the Chamber want. That is the critical point; whoever is put forward must be capable of commanding support from both sides of the community.

As I said, some Members may be exhibiting a slavish devotion to one particular method, but we have to be much more innovative, and there are different ways to achieve community support. Given that we use cross-community votes in the Chamber on quite a few occasions, it is not a particularly original method. Consensus and inclusivity are at the core of clause 2, and, down through the years, the SDLP has preached ad infinitum that we must have consensus and be inclusive. Those principles are at the core of the clause, so I am confused about why the SDLP opposes its standing part of the Bill. It may not be its preferred option, but it must at least accept that it is an option for having consensus and inclusivity and for achieving cross-community support for whoever the justice Minister is.

I turn to the opposition to this clause from the unionist Benches. I do not want to go into an historical retrospective about what people have agreed to in the past. Others have not engaged in that, and I do not want to go down that path, unless provoked into doing so. I have to point out that the clause protects the interests of unionism. Their opposition comes from a concern that there is sensitivity in the unionist community about the position of a justice Minister. Emotions run high, and there is great concern about who might take that position. That is why those Members have stated their opposition, notwithstanding things said and done down through the years and in the not too distant past.

I ask why they oppose the clause, when it protects the interests of unionism and allows unionists a clear say on who holds the very sensitive position of Minister of justice. No other option in legislation available to the Assembly offers the protection offered by clause 2. Clause 2 ensures that political unionism has a say over who holds that position; that is something on which those Members should reflect. As I mentioned, they said recently that they oppose both Sinn Féin and the SDLP holding that position. This goes back to the point about the rerunning of the d’Hondt system. No other system protects that position and ensures that certain members of certain parties do not hold it. I ask those Members to reflect on that in their opposition to this clause and their support for the SDLP’s proposal. Clause 2, as it stands, protects the interests of unionism that the DUP has espoused and which the Ulster Unionist Party has latterly come around to espousing.

I am grateful to the Member for giving way. Does he understand that one of our primary objections is that the institution of the Executive was formed on the basis of the d’Hondt system and that implies that that system should be used to choose Ministers during this mandate?

Likewise, will the Member concede that the Alliance Party, in its current strength, is not entitled under the d’Hondt system, as of right, to a Ministry? However, a convenient agreement is being hatched, which is being labelled “cross-community support”, to enable the Alliance Party to expect that that Ministry will be given to its charge.

The d’Hondt system may well have been the mechanism used at the start. However, I would have thought that the Member would agree with my point about the sensitivity of the office of a Minister of justice — indeed, a first Minister of justice — and that he would agree with the position outlined in clause 2 that cross-community support is essential.

The Member may be mathematically correct that the Alliance Party has not the strength of numbers to have the right to a Department according to the d’Hondt system as it is currently constituted. However, I suggest that that is not the issue at hand: rather, it is the need to have confidence on a cross-community basis in the person appointed Minister of justice. I would have thought that the Member would agree with me on that.

I am grateful to the Member for giving way. This is not about the Alliance Party; it is about a new Department and the mechanism of election. In today’s debate, the Alliance Party is judging the issue on its merits. It is not about our party.

Does the Member recognise that, with respect to size of mandates, it is commonplace around the world for parties that are smaller than the Alliance Party in terms of seats in the legislature and support in elections to be in government legitimately? South of the border, there is the recent example of the Progressive Democrats and, at present, the Green Party, both of which have proportionately smaller mandates than the Alliance Party but play a full and active part in voluntary coalition Governments.

The Member has made a very valid point. In other democracies not too far from here, where coalition Governments are the norm, parties very much smaller than the Alliance Party regularly form part of the Government and regularly punch well above their weight.

I say to Mr Kennedy that this is not a point about one particular party; it is about having a system in place that commands community support. Obviously, we on these Benches are keen to ensure that there is unionist confidence in any system that appoints a Minister of justice. I ask Mr Kennedy and his party to reflect again on how any of the other available systems could command cross-community support.

The Member was in the process of making the key point when he was interrupted. That key point is that a future Department of justice will have responsibility for the most sensitive life and death issues that affect our community.

If the SDLP were to achieve the post of Minister of justice using the d’Hondt system, it would mean that that Minister would command less than 15% of the support of the Assembly. It would also depend on a SDLP Minister being able to gain the support of all of his or her colleagues, and that is unlikely. There is a requirement in the Department of Justice Bill for the person selected as Minister of justice to have the support of more than 50% of both sections of the community through the designation system.

That is absolutely correct. Perhaps it would be better for the SDLP to wait until its leadership contest is decided before it nominates someone as Minister of justice.

The issues that will be dealt with by a future Minister of justice are so sensitive that a higher threshold for the post is required. Therefore, to subject the post to the vagaries of the d’Hondt process, as the UUP would do, despite acknowledging those sensitivities, which, I think, they now do, is something that they need to reflect on. Opposing for the sake of opposing or doing so for spurious reasons such as timing — there are no timings involved, which will be demonstrated when the second set of amendments is proposed — is wrong. The UUP must reflect on its opposition, which is not particularly principled, is entirely manufactured, and does not represent the position that it has espoused in recent times or indeed that has been espoused by the wider unionist community.

I want to move on —

Will the Member give way?

I have been trying to move on to my second set of points for some time, but I will give way to the Member.

Will the Member confirm explicitly what he has said implicitly: the cross-community mechanism has been chosen by the two main parties and his own party in particular to exclude a nationalist from the position of Minister of justice? In fact, the Member has said what the SDLP has said all along, and the message is that no nationalists need apply.

I have allowed the Member to get his intra-nationalist warfare sound bite in, but I cannot see how, if he examines clause 2, he can conclude that its intention is to exclude anyone. Instead, it embodies inclusiveness and the need to have cross-community support for whoever is nominated. The point that the First Minister made was that whoever is selected will ultimately have the support of the majority of Members on the unionist and nationalist Benches. That is inclusiveness and consensus and exactly the type of principles that the Member and his party have been ramming down everyone else’s throat for the last number of years.

I will now move on to the other amendments tabled by Mr Attwood. Amendment Nos 2, 3 and 4 deal with the requirement for reporting and voting by the Assembly on what may or may not happen in May 2012. Having listened to Mr Attwood speaking about those amend­ments and using words such as “grave”, “acute” and “catastrophic” I was interested in the motivation behind the amendments. Were they motivated by some genuine concern about what may or may not happen after May 2012? I listened intently and with interest to what he said to find out whether he was genuinely concerned about what might happen or whether there was some other motivation. It did not take too long to see that there was another motivation, and it is not genuine concern about some catastrophic state of affairs in May 2012; it was about protecting a slavish devotion to d’Hondt and trying to protect the SDLP party position on the justice Ministry.

No one in the Assembly should be planning for failure. Times have genuinely changed when a member of the SDLP is more pessimistic than me about the future. We should not be saying that the world will end, things will collapse, and it will all be doom and gloom and catastrophe in May 2012. No one believes that, if the Assembly cannot agree a continuation to the current arrangements or even an alternative set of arrangements, policing and justice will suddenly just end. Halloween is not too far behind us, but Mrs Long mentioned a nightmarish scenario in which prison doors would be opened — I thought that had happened before; a recurring nightmare, perhaps — police would not be on the streets or have any resources and the justice system would grind to a halt. That sort of nightmare scenario, implied by Mr Attwood, is not at all realistic.

I concur with others who said that the argument that was put forward was based on twisted logic. We are facing what Mr Attwood regards as a catastrophic set of affairs or there is a fallback position. We cannot have both: it is one or t’other. However, that is the twisted logic that was put forward in support of the amendments. I am not confused; my interpretation of the section of the Northern Ireland Act 2009 that deals with this issue is that the Department, having been created, would dissolve unless the Assembly passes a motion to sustain it, or —

Is the Member saying that there is no fallback? Is he supporting the legislation on the basis that there is no fallback?

The legislation clearly places an imperative on us all, including the Member’s party, to get engaged in developing a long-term resolution to that issue. That, in one respect, is a fallback, and I do not believe that there will be some awful set of circumstances, or that Northern Ireland would be allowed to continue without having any policing and justice powers resting anywhere. It is crazy to think that that would be the case. Services would not just simply end at the end of May 2012, as Mr Attwood suggested.

Mr Attwood claimed that these matters cannot be sorted out or that it would take a long time and that there was simply no chance of getting them sorted out by 2012. By tabling the amendments, his party is attempting to precipitate a crisis much earlier in the process than he suggested might already be the case. The SDLP amendment would mean that, within seven days of this Bill receiving Royal Assent, the First Minister and deputy First Minister have to make a report on what the fallback position is. Within seven days of that, the Assembly must then endorse the current arrangements or other arrangements. Therefore, instead of having the time between Royal Assent and May 2012 to see how the arrangements work and to see whether people are content or whether they want to look at other possibilities, the SDLP is proposing, much earlier, within a fortnight, to force a crisis on the Assembly.

I am in no doubt that, in that fortnight, SDLP members would do absolutely nothing to assist in coming to a long-term arrangement. They would happily sit on their hands and do nothing, because it is the SDLP’s belief that the fallback is that the d’Hondt principle would kick in. In fact, the amendment proposes that d’Hondt become the de facto position for nominating a Minister of justice. That is at the heart of the SDLP amendments.

The amendments have not been tabled out of a genuine concern about what will happen after 2012 and a fear that violence and chaos will run amok across the streets of Northern Ireland. That is not what it is about. That concern is feigned and synthetic; it is not genuine. It is about d’Hondt and the SDLP’s belief, as Mr O’Loan and others enunciated, that, under that principle, the SDLP is entitled to the position of justice Minister. That is what it comes back to. It is nothing to do with a genuine concern about law and order in Northern Ireland.

The SDLP wants to force a crisis onto the Assembly within a fortnight of the passage of this legislation. It wants to force a crisis in advance of the actual devolution of policing and justice powers. The effect of that would be that the likelihood of devolving the powers to the Assembly would be little or nil, because the SDLP would be forcing a crisis that would take a long-term decision. That is why we want the interim measure. It will allow us the advantage of space and time, until 2012, to agree on something long-term to which everybody can subscribe. As Mrs Long said, if the SDLP fails to kill clause 2, this is its fallback position. It is about the SDLP trying and wanting to become justice Minister. It is not about any genuine concern.

Will the Member give way?

Yes. I was trying to conclude, but I will give way.

I anticipated that the Member was trying to conclude, and that is why I asked him to give way. For Mr Hamilton to say to the SDLP, never mind its constituency, that it does not have genuine concern for law and order flies in the face of any objective evidence base or realistic assessment about where the SDLP stands on the issues. Does Mr Hamilton think that that accurately reflects the SDLP position? Although Mr Hamilton might say it, I have enough confidence that he does not believe it.

Does Mr Hamilton accept that, under the SDLP’s amendment Nos 2, 3 and 4, the outcome will be that we have a Minister who is either elected under d’Hondt or under cross-community provision? That will not create a crisis; it will create certainty and the appointment of a Minister who knows, one way or the other, the terms under which he or she will act until May 2012.

Mr Hamilton has to get his head around what will happen in 2012. Will there or will there not be a vacuum? Mr Hamilton, as a considered man and as a potential legislator, has an obligation to himself and his constituency to explain and understand that. That is the issue before the House. I ask him at this late stage, as he concludes, to address that issue.

Mr Deputy Speaker, perhaps you can correct me if I am wrong, but I am under the appre­hension that I am an actual legislator. The Member may not like how I vote on particular pieces of legislation, but a legislator I am, as is he.

You have a better chance of getting something on the statute books.

I will leave that comment. With regard to Mr Attwood’s first point, I believe that his party supports law and order. If he cares to check the Hansard report tomorrow, he will see that I said that I did not believe that his tabling of the amendments was motivated by a genuine concern about what happens with law and order in Northern Ireland post May 2012. It is not about his party’s support for law and order in general.

In tabling the amendments, Mr Attwood and his party are asking for a long-term solution to be put in place before we have even tried the short-term solution and, indeed, before we have even had policing and justice powers devolved to the Assembly. Unfortunately, they are supported by members of the Ulster Unionist Party. If by some miracle his amendments are accepted by the House, I ask Mr Attwood to reflect on how helpful those would be in getting policing and justice powers devolved in the first place, never mind achieving a long-term solution.

In conclusion, I go back to my first point: I think that we are all committed to having policing and justice powers devolved to the Northern Ireland Assembly, yet there are outstanding matters that must be dealt with, not least community confidence. Community confidence has as much to do with finance as it has to do with the institutional arrangements. Those institutional arrangements and community confidence, particularly in the unionist community, are predicated on clause 2 standing part, to ensure that whoever holds the sensitive post of justice Minister is capable of commanding support on both sides of the Chamber. That is why, in the spirit of consensus and cross-party support, I support clause 2 and oppose the SDLP’s argument that that clause should not stand part of the Bill. I also oppose the SDLP’s other amendments and ask the House to do the same.

Once again we have the vexed problem of mobile phones and Blackberries. I ask all Members to switch off their mobile phones, Blackberries or other electronic equipment as they are interfering with the sound system in the Chamber.

Go raibh míle maith agat, a LeasCheann Comhairle. I oppose the first group of amendments — amendment Nos 1, 2, 3 and 4 — and I declare an interest as a member of the Policing Board. The Bill demonstrates that the process of delivering policing and justice powers into the hands of locally elected politicians is moving forward. Key stages in that process have been reached, including the report of the Assembly and Executive Review Committee and legislation passing through the Executive to the Assembly.

I note the positive comments from the joint First Ministers’ office that a significant offer has been made regarding a financial package. However, I want to deal with the sunset clause. Many people in our society will agree that the 2012 deadline creates an imperative for all Members to try to secure agreement before that deadline. That is particularly important because a local Minister will do a better job than a British Minister.

We must build confidence across society, because people want a local Minister so that they can discuss the policy framework within which policing and justice functions will reside. I reminded the SDLP both this morning and the last time that we discussed the Bill in the Chamber that that party flagged up the success of the sunset clause in the St Andrews Agreement, which ensured that the DUP went into government by 26 March 2007. Although the SDLP claimed — rightly or otherwise — the credit for that, it agreed in principle to a sunset clause in the St Andrews Agreement. Therefore, one would imagine that on such a crucial matter as policing and justice the SDLP would today support the need for such a clause.

However, I am mindful of the fact that members of the SDLP might have changed their minds. The manifesto assertion that deals with the sunset clause was made before the outgoing leader of the SDLP, in a speech in Oxford, talked about “the ugly scaffolding” in the Good Friday Agreement around power sharing and representativeness and about how that needed to be dismantled. I understand what that said: some parties, including the SDLP, have difficulties with the current arrangements for the appointment of a justice Minister. However, what is proposed is a temporary measure. It is necessary to move the process forward, and I believe that our people want to see us moving forward in a positive and constructive way. It is our position that the allocation of the ministerial position should revert to d’Hondt post 2012, but all Members have a lot of work to do between now and then.

I will deal with the issue of the sunset clause.

Order. Again, there are a number of private conversations going on in the Chamber. It is distracting to me and to the Member who is on her feet. Please desist, or go to another part of the Building.

Go raibh míle maith agat. I will deal with the issue of the sunset clause. The provision for the British Secretary of State to impose a ministerial model of policing and justice becomes spent once the Assembly passes an Act. That is a fact, and the purpose of the powers as previously stated was to allow the British Secretary of State to intervene to kick-start the transfer of powers. That process falls away once the Assembly makes its own provisions. That is precisely what we are doing today as part of that process. The precondition is that the imposed solution addressed by an Order in Council will be taken forward only if it appears to the British Secretary of State that there are no reasonable prospects that the Assembly will pass an Act. However, an Act of that kind is precisely what the Bill will achieve.

As Alex Maskey correctly stated earlier, the House of Commons Hansard report of 4 May 2009 shows that Paul Goggins said:

“The Bill provides no fall-back position beyond May 2012. Frankly, it is not for us in this place”

— Westminster —

“to determine any additional model beyond that period”.

He went on to say:

“There is no fall-back position…and it is entirely a matter for the Assembly…It is important to know that central Government do not have a major hand in determining what happens in a model beyond May 2012. That is a matter entirely for the Assembly”.

The British of Secretary of State dealt with that matter on 4 May 2009. The SDLP opposition to the Bill is dressed up as concern, but it once again demonstrates the negative role that that party has played throughout the political process of dealing with the transfer of policing and justice powers. People want leadership from all the political parties in the Chamber. People know who is leading and who is not. That is probably why the SDLP has faced more than six electoral defeats.

The SDLP stated that, under the rules of democratic inclusion, as the SDLP members call it, it is entitled to the position of justice Minister. However, section 17 of the 1998 Act states:

“(4) The number of Ministerial offices shall not exceed 10 or such greater number as the Secretary of State may by order provide.

(5) A determination under subsection (1) shall not have effect unless it is approved by a resolution of the Assembly passed with cross-community support.”

Section 18 of the 1998 Act states — this is very important in the context of the SDLP amendments — that all Ministers shall cease to hold office in the event of a resolution that causes one or more ministerial offices to become vacant. Therefore, as has been said by other Members, it is not a matter of an additional ministerial post being added on through d’Hondt. A total rerun of d’Hondt would be required, and, therefore, the Department of justice would be more likely to reside in unionist hands. I concur with what Simon Hamilton said with regard to how the republican and nationalist community would feel if a Minister for justice was from the unionist community, regardless of whether that person was from the DUP or the UUP.

We have a job of work to do to build confidence by 2012. Confidence is a two-way street. We are not talking about the confidence of the unionist community or some other community; our community, regardless of the traditions of unionism or nationalism, needs confidence instilled in it.

Without doubt, the republican/nationalist community does not want a justice Department to go to a unionist Minister at this time. Hopefully, by 2012, we can build enough confidence across society so that whoever is entitled to the justice Department gets it, allowing us to move forward. Sinn Féin and the DUP have said that they do not intend to nominate and that they are prepared to set aside their party interest to show leadership. People may try to make politics and say that one party is doing that to keep the other party out, but that decision is about providing leadership, which is what people want. They want to see that from all the political parties, including the UUP, and, with particular reference to our community, the SDLP.

We regard the transfer of policing and justice as more important than one party or other holding a ministerial position. To be clear: Sinn Féin’s preferred position is that the ministerial position go to the SDLP. However, clause 2 allows us to get power back from Westminster into the hands of locally elected politicians, and the people of our society want access to a local Minister.

In my constituency of Foyle, I have dealt with cases that would be much easier if I could get access to a Minister here to discuss even some of the concerns that emanate from my constituency to do with the justice system, policy decisions that are taken and the policy framework within which they are set. I am sure that that is the case for every Member.

There is an appetite for a local Minister to be put in place, but, as the SDLP stated, the first group of amendments is an attempt to remove clause 2. However, the SDLP cannot handle the fact that clause 2 has already been agreed.

On 18 November 2008, the Office of the First Minister and deputy First Minister said that it had agreed on the transfer of policing and justice, including the steps by which it would be achieved. It outlined how a Minister of justice would be appointed: nominations would be invited from Members and the successful candidate would require the support of the majority of Members, present and voting, including a majority of designated nationalists and a majority of designated unionists. That was accepted by the Assembly and Executive Review Committee and was reflected in its report. As well as setting out an arrangement for appointing the Minister, the Committee’s report contained recommendations to deal with the departmental structure and the powers that are to be transferred.

On 20 January 2009, the Assembly approved a motion that endorsed the report. Therefore, clause 2 has been agreed by the Assembly and Executive Review Committee, and the SDLP needs to explain better than it has done today why it is trying to usurp and undermine that agreement. Perhaps it is genuinely concerned from its own selfish political point of view that Sinn Féin and the DUP will make further progress on a subject that the SDLP and the UUP could not even discuss, let alone get to the advanced stage that it is with us today.

Although I can accept the SDLP’s political concerns, it must show leadership on the issue and engage with people who are hungry for a local Minister to whom they can have access and to whom we, as elected Members, can have access to discuss our concerns about how the judiciary is working.

Arrangements for the appointment of a justice Minister under clause 2 are interim measures. They would last until May 2012, at which point the Department of justice would dissolve unless the Assembly were either to extend those arrangements by resolution or to devise alternative arrangements. That puts an onus on every Member in the Chamber to work to resolve arrangements beyond 2012.

Before that date is reached, there will be an opportunity, which was mentioned earlier by Simon Hamilton and other Members, to review the ministerial arrangements that would have worked up to that point and to decide then what is needed to move forward. If the Assembly supports the SDLP amendments, it will remove that opportunity by imposing an unrealistic time frame. Of course, no one wants to see the Department’s dissolution in 2012. That is precisely the incentive to agree permanent arrangements.

Despite what the SDLP has said incorrectly, there would be no shortage of Assembly scrutiny of the process. The resolution that would request the transfer of power would be debated and would require cross-community support. The determination of ministerial offices would be brought to the Chamber. The new justice Minister would be elected by the Assembly with cross-community support.

No matter what the SDLP says, the transfer of policing and justice powers away from London and into the hands of locally elected politicians is part of the St Andrews Agreement; it is not an optional extra. It is also a British Government obligation.

People demand a justice system that delivers. They want access to a local Minister who is in charge of a Department of justice. They are sick and tired of the revolving-door justice system that allows hoods and thugs back onto the streets after they have been arrested. People want to be able to go to a Minister to discuss the policy framework that allows that to happen. They have had enough of seeing death drivers walk free on bail to continue attacks in their communities.

After the transfer of policing and justice powers to the Assembly, the statutory framework that governs policies on what constitutes crime and what appropriate penalties should be would become the responsibility of the Assembly Minister. That is what society wants. Regardless of whether they come from east Belfast or the Bogside, that is what people demand and want.

Although we accept that certain issues need to be resolved, we must use the time ahead to secure consensus. We must all try to ensure that we work with each other’s traditions and work together in the Chamber to show the leadership that people expect and want from the Assembly.

The process is moving ahead. The SDLP and the UUP need to face up to and deal with the choices that are in front of them. They can either continue to ignore a political reality, or they can become involved in the process. I hope that they do become involved, give that leadership, put people’s demands in front of party interests, and play a constructive and meaningful role towards building the justice system that people throughout society demand and deserve. Go raibh míle maith agat.

I remind Members that mobile phones should be switched off.

For the record, Mr Deputy Speaker, my mobile phone is switched off. Just to prove it, its wee light is off. I turned it off earlier when I became aware of what was going on.

I want to speak first to amendments Nos 1 to 4, which deal with one issue. Other colleagues have already spoken on them. I commend those Members for highlighting the nonsense of those amendments, which, with respect to the SDLP, are another failed attempt by that party to establish itself as the opposition, despite the active role that it plays in the partnership Government.

I cannot speak for the people who voted the SDLP into its Assembly seats. I can speak only on behalf of my constituents. I speak with full confidence that I am representing that majority when I say that the people of the Province have been battered and bruised by years of conflict, broken promises and neglect. For too long, we hoped for better days, to no avail. Now, there is no doubt that we are emerging from the deepest darkness. I do not dispute that for a second. However, it is a fool who learns nothing from the past. We, in the DUP, are not fools.

At the outset, let us get it straight that the effect of amendment Nos 1 to 4 will be to shut down the sunset clause contained in the Northern Ireland Act 2009. Ultimately, that clause is a torch in case the lights do not come on and the Department of justice is a failure.

The sunset clause allows the Assembly the freedom to say that the process has not worked and that it must start again. That provides an essential assurance to the people of the Province that the Department of justice is not set in stone. That fail-safe mechanism means that there is light at the end of the tunnel.

I have spoken to my constituents, and it is abundantly clear that, despite their recognition of the need for a Department of justice, they fear that knowledge and power may be given to those who may use it against them and that those responsible for heinous crimes may benefit while moral and upstanding people receive no redress. The only way to dissolve such genuine fears is to build confidence slowly and to ensure that people are aware of the existence of that fail-safe mechanism should their worst fears be realised. That is why the DUP opposes the amendments.

The Assembly was set up not to railroad people but to represent them and to ensure the best for the Province. It is not best for the Province to steam ahead with no regard for people’s opinions or for the justifiable reluctance of some. The ability to start anew after a few years is essential to the peace of mind of people in the Province. The DUP hopes to bring along the majority of the people with it in supporting the legislation, and it is, therefore, not possible to accept the amendments.

I am known in my constituency as a people person, and that may also apply to other Members. I speak in the Chamber not on my behalf but on behalf of many members of the public. I listen to what people tell me, and I take it on board. They tell me of the real fear that someone who has been associated with terrorism may be able to control justice, and they say that that could never be acceptable. The DUP makes that point clear on their behalf.

The DUP sits in the Chamber with Sinn Féin today because that party has a mandate. The turnabout of Sinn Féin’s position to public support for the PSNI and other signs of change mean that the unionist people have had to accept that, in a democracy, votes count. However, that does not mean that we will accept someone in the role of justice Minister who has been intimately affiliated with terrorism. Memories of the past have not been, and will not be, forgotten. It is prudent and wise to learn from the past.

It is, therefore, essential that clause 2 remains as is. Were the DUP to accept the SDLP amendment, instead of a system requiring a cross-community vote that incorporates a veto security lock, the appointment of a Minister of justice would be left in the hands of the d’Hondt system. For many unionists, that would mean the end of their confidence not only in a justice Minister and Department but in the Assembly as a whole. That is a critical factor.

The Province’s unique history has left it in a unique situation. We have suffered as no other country in the UK has suffered, and the scars, mistrust and fear run deep. That is a natural result of years of terrorism, and it is simply not realistic to expect people who have been terrorised and abused for years to welcome a Bill that would allow for a Minister of justice from the Sinn Féin Benches. It would be an insult to the memory of those who suffered and made sacrifices to ensure that genuine justice is achieved. The DUP will not allow it.

It is possible that the game playing in which the SDLP is engaging today may cause the majority of people in the Province to lose faith in the Assembly and its ability to govern Northern Ireland. When I read amendment Nos 3 and 4, which seek to rush the process, I wonder exactly what the SDLP seeks to achieve. It wants to apply pressure so that the system is in place before the people are ready to trust and believe in it. That must not happen, because unionist confidence is vital.

Members are here to represent, not railroad, the people. I will have no part in what the SDLP is trying to achieve. The establishment of a Department of justice and the appointment of a Minister of justice can come about only when the electorate places sufficient trust in the process and the system. At present, the people whom I represent have no confidence in the d’Hondt system and badly need reassurance that the appointment can happen only with the approval of the largest unionist parties. The SDLP must consider what the people whom it represents want. If they had wanted a Sinn Féin Minister in charge, they would have voted for Sinn Féin instead of the SDLP. The SDLP would do well to remember that it is the party that is playing games.

I have a fair idea who voted for me, and I know that cross-community voting happens in my constituency. I am more than satisfied that I represent all my constituents when I say that the security of clause 2, as it stands, is required. We are nowhere near reaching the level of trust required for the SDLP amendment to be acceptable.

We cannot treat the Bill as if we were travelling in the rush hour. If the people of the Province are not comfortable with the arrangements being steamrolled through by the SDLP within seven days, there cannot be a designated day or dissolution.

This is a delicate business that must be treated with care and consideration. Reading the proposed new clauses, I honestly do not know what reality the SDLP is living in, but I know that it is not the one that the rest of the Province faces daily. That is why I support the Bill but not the amendments.

As a Member of the Committee for OFMDFM, I have sat through evidence sessions on the Bill, and I have listened today to Alex Attwood defend his stance on and reaction to the Bill. I know that he will not be entirely convinced by what other Members have said in the Chamber.

I know for a fact that the people of the Province are watching and listening to this debate with great interest. I reiterate the point that we will ensure that controls and safety measures are in place and that there is confidence in our ability to protect that position and the people whom it represents. We will also ensure that the Bill is not steamrolled through and that the appropriate measures are in place. In fact, we believe that those are in place in the Bill already without the SDLP’s changes, schemes or amendments.

We have listened to our constituents, and we will abide by what they want and need. They need the sunset clause and the cross-community vote to apply to ensure safety. We will ensure that that happens. Our constituents need us to dismiss the SDLP’s amendments and to ensure that common sense and wisdom prevail. We will do that, too. They need us to ensure that the process is not rushed by unreal deadlines. That is what we will do.

For the sake of the people of Northern Ireland, I ask the SDLP to stop playing games and to do what it is elected to do. It must represent its voters, who wanted it, not Sinn Féin, in a position of power. We need devolution of policing and justice, but only at the right time and with the right person at the helm. Rather than furthering the case for devolution, the amendments do the opposite and, therefore, cannot be supported. I subsequently support the Bill as it stands, and I oppose amendment Nos 1 to 4.

I declare membership of the Assembly and Executive Review Committee. I wish to speak about clause 2 in particular, which Members on this side of the House will be voting against. That is because the entire Bill is a back room deal between the DUP and Sinn Féin. My party was neither involved in nor consulted on the Bill, which was pushed through the Committee by the two big parties.

The Member said that this is a back room deal that he and his party were completely unaware of. Was the Member not sitting three seats down from me throughout the Assembly and Executive Review Committee’s deliberations on this issue and the proposals?

He was here during the Second Stage debate, too.

As the First Minister pointed out, the Member also sat through the Second Stage debate in the Chamber. Therefore, for him to say that he and his party are unaware of what has been proposed is a complete and utter fallacy.

Mr Hamilton knows that the Member for Foyle made it clear in her speech earlier that this came out of a deal that was done at St Andrews. That is what she said, and she quoted bits and pieces of the sunset clause that was agreed at St Andrews. The clause was agreed between the DUP and Sinn Féin at St Andrews. [Interruption.]

Order.

As everyone will recall, the deal then got stuck for 154 days before it was unlocked when the First Minister and deputy First Minister came to the Committee, at which the Member was present, and announced a 35-point plan that they had agreed privately, without any reference to my party. Therefore, I am correct in saying that this is a deal between the DUP and Sinn Feín.

Will the Member give way?

No, I want to progress my argument a bit. [Interruption.]

I will give way in a minute, so I ask that the First Minister bides his time.

Clause 2 is a complete perversion of the system that is used to elect Assembly Ministers. It is not for the benefit of the Assembly; rather it is for the benefit of the First Minister and deputy First Minister, who have dug themselves into a hole and are now trying to get out of it by using this system.

It is not the first time that the DUP, in particular, has ended up interfering with Assembly procedures. We all know that the DUP, at St Andrews, messed around with the system for electing the First Minister and deputy First Minister. That will, I suspect, lead to Mr McGuinness being elected Prime Minister of Northern Ireland at the next Assembly election. People need to remember that about the Democratic Unionist Party.

Will the Member tell the Assembly how the DUP messed around at St Andrews with the positions of the First Minister and deputy First Minister? If the Member took the time to read the St Andrews Agreement, he would see that it states that the position of First Minister goes to the largest party in the largest designation.

The First Minister knows that, subsequent to the St Andrews Agreement and the dealings around it, his party acquiesced — it did not die in a ditch, or object — to a change that Sinn Féin very cleverly managed in agreement with the DUP. That change was that the position of First Minister would, from then on, be given to the largest party. Given the way in which the TUV is fracturing the DUP, we will end up with three unionist parties, Sinn Féin as the largest party, and Martin McGuinness as Prime Minister of Northern Ireland, thanks to the DUP.

Will the Member give way?

No; as the DUP keeps telling us, I must progress and move on.

We can see that the DUP and Sinn Féin are fearful of each other and that neither party is willing to take the justice Department. However, the damage to the Assembly system by putting a Member from the Alliance Party into the position of justice Minister is plain wrong.

Electorally, the Alliance Party is a tiny party, and it has no right to the justice Ministry. It is sad, as has been mentioned, that the Alliance Party is so ready to ditch the principled position of opposition that we have heard so much about for the past two years. Almost the first thing that Mrs Long said when the Assembly was formed in 2007 was that the rest of us were in the Executive together, that the Alliance Party was the only party of principle and the only party in opposition, and that it would hold the Government to account. It is interesting that all that has been ditched. The Alliance Party has sacrificed its principles to save Ulster.

Clause 2 clearly shows that the justice Minister will be selected — [Interruption.] Shush — [Laughter.] The justice Minister will be selected and, if necessary, deselected by the First Minister and deputy First Minister.

Will the Member give way?

Yes, go on then. [Laughter.]

Will the Member clarify whether his party is against saving Ulster?

Given that his party has seats on the Executive, will the Member clarify whether his party is part of the Government or is an opposition party. The Alliance Party is clear that it is not in the Executive, and, because of that, it plays the role of opposition. We have ambitions to win our place in the Government, perhaps in the near future or some time in the future.

The Alliance Party never said that opposition is a party principle. Good governance is a principle of the party, and we are happy to play our role in providing that, whether outside the Executive or in the Government. If the Alliance Party is in the Government, it will know that it is. Unlike the Member’s party, we will not be in the Government and in opposition at the same time.

Jolly good: we have Her Majesty’s principled opposition. Crack on.

It is perhaps a bit strong to call the justice Minister a puppet. However, the threat to remove that Minister if he or she does not behave is real and will remain so. The ability of the two largest parties to influence the justice Minister, even through a quiet word in the ear, exists. No Minister should be put under such pressure.

The DUP tells us that community confidence must be in place before the devolution of policing and justice, and that the DUP is going to be able to measure that confidence. If that is so, and if that confidence exists, which will have to be the case before anybody moves forward, why can the justice Minister not be a normal Minister and be elected by the d’Hondt mechanism?

I have listened to the Member’s argument as it has progressed. He said that he has no confidence in the Alliance Party taking the justice Ministry and that he wants to run d’Hondt. Does that mean that the Ulster Unionist Party thinks, as it did in 2002, that Sinn Féin should be eligible to take the post of justice Minister?

Sinn Féin has made it clear that it will not take the post, as has the DUP. Why should Sinn Féin — [Interruption.]

Let me kill this canard completely, because the DUP goes on and on about it. If d’Hondt is run, the largest party has first choice. The largest party in the Assembly is the Democratic Unionist Party. If the Democratic Unionist Party does not want to take the justice Ministry, that is its choice as the largest party. If the DUP wants to give the Ministry to Sinn Féin, that is its problem. Do not ask the Ulster Unionists about that. Unfortunately, we are not the largest party in the Assembly, although the way that the DUP is going, we may be again in the future.

Does the Member accept that he has illustrated the lack of confidence that surrounds the devolution of policing and justice?

There seems to be a lack of confidence all round; there is caveat upon caveat upon caveat.

I end my remarks on the group 1 amendments by making reference to the sunset clause. The way we are going, the Minister of justice will have two years in post at best. As it does not look as though there will be agreement before Christmas, devolution will probably happen in the spring. A date of May 2012 for closure on the matter gives the Minister two years in post before he or she — presumably Lord Ford or Baroness Long — is removed. [Interruption.] Shush.

What happens if the justice Minister is not re-elected in 2012? If you put all the questions together, it shows that the system is a daft one to introduce when we have one that works perfectly well.

Alex Attwood covered the default system over the sunset clause and the intervention that the Secretary of State will make when no agreement can be found on the way ahead. The way things are going between the DUP and Sinn Féin, agreement is unlikely before the next election. After the election, the party positions may change. Why get into a situation of delayed crisis in 2012 when the standard Assembly system could be adopted, regardless of private agreements between the DUP and Sinn Féin about not taking the job? Why not run the d’Hondt system and, if confidence exists, have a fully operational Assembly right from the off?

The Bill is deeply flawed, and we will not support any measure that damages the integrity of the Assembly.

I support the group 1 amendments and oppose clause 2 standing part of the Bill.

Confidence has been talked about quite a lot in relation to the devolution of justice and policing. Inside and outside the Chamber, there has been much emphasis on the necessary confidence that people need before the devolution of policing and justice powers can take place. People want to have confidence, not just on matters now but on matters in the future. People want to have confidence in the budget situation, not just for the next two years but for the years ahead. People want confidence and assurance on the operational independence of the Chief Constable, although some of those who are insisting on it have been trying to put pressure on the operational independence of the Chief Constable by introducing various preconditions in our deliberations this week. Nevertheless, confidence is an issue not only for the short term but for the long term.

In the past, parties have said that, in their experience and interpretation, one reason why the devolution of justice and policing should not be rushed is that people need to gain confidence in these institutions and that the building of such confidence would provide grounds for confidence in the devolution of justice and policing. On the basis of the issue of confidence, which has been stressed so emphatically by many other parties, we have tabled the amendments, which go to the core of an issue that projects a serious lack of confidence and creates serious grounds for concern: the so-called sunset clause that was built into the Northern Ireland Act 2009, which was passed in Westminster.

That clause states that the Department of justice, which will be created on the basis of public confidence in 2009 or 2010, will automatically dissolve on 1 May 2012 if there is no agreement to continue the current arrangement, which we are told is an interim arrange­ment that is proposed in the Bill. However, the Bill provides that the interim arrangement might be the long-term arrangement. We must agree to that if we are to prevent the dissolution of the Department of justice in May 2012. Alternatively, we can agree to another model from the menu that was provided by Secretaries of State in various pieces of legislation. That will prevent dissolution in 2012. Of course, we could agree to use d’Hondt.

Our amendments would ensure that, at this time, the Assembly has the option to still use d’Hondt for the appointment of the first devolved justice Minister and not rely solely on election by cross-community vote. Our amendments do not absolutely exclude the possibility that parties will use their numbers in the Assembly to have an election by cross-community vote. They mean that we will retain the possibility of electing by d’Hondt if the Assembly, on the basis of the statements and reports that would be made by the First Minister and the deputy First Minister, has the confidence to go that way.

Amendment No 2 creates the obligation on the First Minister and the deputy First Minister to report to the House. It would allow the First Minister and the deputy First Minister to demonstrate and advertise political and public confidence in the prospects for the devolution of justice and policing.

Will the Member provide clarity: if the Ministry of justice falls in 2012, where will the powers be designated?

The Member moves me to a topic that is slightly astray from where I want to be. We do not know the answer. That is one reason why the First Minister and the deputy First Minister should make a statement to that effect. When we raised those questions previously, we were told that we were wrong, that there is absolutely no fallback or that the Secretary of State would not use the fallback that might exist. The reality is that the nature of the fallback in paragraph 8 of schedule 1 to the Northern Ireland Act 2009, which was passed in Westminster, means that the Secretary of State will impose a model for the Ministry. However, that model of a Minister and a deputy Minister would still require an election in the House. Even if there is a fallback, Ministers might not be appointed.

The Member is providing a lot of conjecture about what might be a fallback. Will he tell us whether there is a fallback position and, if so, what it is? He argues that there is a fallback position, but he cannot tell us what it is. On the other hand, his party says that we face grave consequences because there is no fallback. Will he clarify his position?

I thank the Member for his point. We have clarified that, but the confusion is in the position that the Member and his party are defending — a position that will be in the Bill, combined with the twin Westminster legislation. At the Bill’s Second Stage, Alex Maskey said emphatically that there was no fallback but, at my invitation, in a later intervention, John O’Dowd said that of course there was a fallback and that, sensibly, there had to be one.

The contradictions and the riddles are in Sinn Féin’s position. One the one hand it says that there is no fallback; it makes a virtue of saying that the sunset clause has absolutely no fallback and that it is curtains if nothing else is agreed. On the other hand, John O’Dowd insisted at Second Stage that there has to be a fallback. Now Sinn Féin is saying again that there is no fallback.

From the DUP Benches, we heard the First Minister say that it could be argued that paragraph 8(3) of schedule 1 to the Northern Ireland Act 2009 provides a fallback for the Secretary of State to impose a model for appointing a Minister of justice and a deputy Minister of justice after 2012 but that he thought that it would be politically unlikely that a Secretary of State would use such powers. Legislatively and theoretically, there could well be a fallback, but whether that is politically feasible is seriously open to question.

The question for us as legislators is whether any of that is satisfactory. We should be saying that the confusion about whether there is a fallback or whether a notional fallback is politically feasible and achievable is, from our point of view as legislators, simply not good enough. The devolution of policing and justice is so fundamentally important that we should not leave it on a wing and a prayer, against all the vicissitudes, vagaries and try-ons that could be used in the run down to the 2012 deadline for the dissolution of the justice Department. The Sinn Féin, DUP and Alliance Party Members are defending the twin Westminster legislation. They are saying that the sunset clause that dissolves the justice Department in May 2012 is a good thing.

To all the people who are defending the dissolution of the justice Department in 2012, what does that mean? It means that the Department will cease to be, but the Minister will not. Perhaps we do not have a problem, so long as we have a Minister. However, as Alex Attwood pointed out, under our system, with the exception of a few laws that make specific reference to the Minister of Finance and Personnel, the power and authority are vested in the Department.

When the Department ceases, what happens to its various functions? Members have decried the list of interests that Alex Attwood mentioned, such as the Prison Service. The Prison Service does not exist as a non-departmental body; as it stands, it is simply part of the NIO. On the basis of everything that we have been told by the First Minister and the deputy First Minister, the functions that are intended to be transferred will be part of the Department of justice. As things currently stand, that is where the Prison Service will be. If the Department of justice is dissolved, what will happen to the Prison Service? The same applies to the Youth Justice Agency; it will be in exactly the same position. It is part of the NIO; it is not a Next Steps agency or a non-departmental public body. The Compensation Agency and Forensic Science Northern Ireland are in a similar position; they would be integral parts of the Department of justice that would be dissolved.

The people who insist on the need for confidence and certainty for the future are the people who are giving us this legislation. They say that it is a good enough basis for them. They say that it will be all right. They do not care about the difficulties that there were when the Executive did not meet, the big ticket issues or the strategic issues that we could not agree on, that we are disagreeing on and that we are running into the ground. They are confident that everything will be worked out just fine, just in time by May 2012. Who seriously believes that? If there are going to be difficulties in May 2012, is it not better to ensure that we do not get there in the first place by making sure that we do not rely on such a dangerous device or ensuring that, in the absence of agreement, there is a safe, clear, known fallback? Our amendments would provide that the safe, known, absolutely reliable fallback in 2012 would be d’Hondt.

Martina Anderson said that Sinn Féin’s preference is a return to d’Hondt in 2012. If Sinn Féin really believed that, it would support our amendments. Our amendments would stipulate that, by law, we would revert to d’Hondt in May 2012 if other issues were not agreed. If Sinn Féin wants to be believed on that, it can prove it by supporting our amendments. Of course, nobody believes Sinn Féin on that.

The Member says that nobody believes Sinn Féin. I think that you will find that the vast majority of the nationalist, republican electorate believe Sinn Féin. Let us not have such sweeping comments. In relation to a number of points that you are making, I have sat through several hours —

I ask the Member to refer all his remarks through the Chair.

I was following the example set by the First Minister earlier, but I will take my lead from the Deputy Speaker.

Order. You are questioning my ruling, Mr O’Dowd. When the First Minister spoke, he did not use the word “you”; he referred his remarks through the Chair, and I ask that you do the same.

I am always enlightened by the Deputy Speaker. As for the SDLP amendments and contributions, they seem to base their arguments on the premise that Armageddon will commence if agreement is not reached within 30 months. However, their amendments state that, if agreement is not reached within 14 days of the devolution of policing and justice, Armageddon will commence. I would much prefer to place my bet on a 30-month timescale than a 14-day one. I believe that we can achieve agreement. It is not guaranteed — nothing is guaranteed in life, especially not in politics — but I am sure that agreement will not be reached within 14 days.

The Member seems to be referring to amendment No 3 when he raises the issue of 14 days. Amendment No 3 would provide that, within 14 days of the relevant date, if the Assembly has not received the report by the First Minister and deputy First Minister that would be required by amendment No 2 and if the Assembly has not voted to appoint a Minister by cross-community vote, a Minister would be appointed through the d’Hondt mechanism. It would not be Armageddon; nothing would stop. The process would move on.

Amendment No 3 would provide that we would know within 14 days that the election would either be by cross-community vote, which some Members appear to favour, or by d’Hondt. Our amendment would allow everyone who supports d’Hondt, both now and in the future, if it is departed from in the short term, to fully do so. Equally, it would allow those who still insist that a justice Minister could be elected only by a cross-community vote to do so. The amendments would not prevent the first devolved justice Minister from being appointed by cross-community vote; they would ensure that d’Hondt would still be an option.

The test is that the First Minister and deputy First Minister come before the Assembly to deal with the issue of the target date of May 2012. The First Minister and deputy First Minister gave us the sunset clause. We did not ask for or seek it. They said that the devolution of policing and justice would occur on the basis that the Department would be dissolved in May 2012. Sinn Féin is telling the nationalist community that it will really put it up to the DUP and will insist on terms, because there is no fallback otherwise. That will end up in a serious game of chicken that will go right down to the wire. The Assembly has the right to know whether that is happening. We cannot pretend that there are not all sorts of political games going on in what Members are telling their electorate and saying what each clause means or does not mean. We cannot pretend that Members are not telling people in their backwoods that there is a fallback, that there really is a way around this and that the sunset clause is not a bad thing.

As a competent legislature and Chamber of accountability, we have a right to demand clarity and openness if different sections of the community are being given different assurances. It is a legislature’s job to know the basis on which legislation is being adopted. That basis must not be confounded later by all sorts of other interpretations and hidden understandings.

There has been much conjecture about the nature of the fallback position. Some people claim that there is no fallback position, but the Member tells us that there definitely is. However, no one other than the First Minister and deputy First Minister has said that they have agreement to do anything until May 2012. It has been stated clearly that there is no agreement on what to do beyond May 2012. Will the Member tell us whether his party can get agreement with anybody here to take matters forward until 2012, never mind beyond that date?

I do not know what the Member needs to hear for the situation to be clearer to him. Agreement has been reached to transfer powers if we can agree a date between now and May 2012. There is no agreement beyond that date; there must be agreement by May 2012 if the matter is to be taken forward. The sunset clause is in the Bill to ensure that people’s minds are concentrated. Will the Member tell the House with whom his party will get agreement to take devolution forward tomorrow, next week or at some other stage within 14 days if the amendment is agreed? He has not told the House of a single way in which his party can take matters forward.

The Member is entirely wrong, and, not for the first time, he made a statement that distracts and misrepresents. The Member said that there is agreement on how to deal with these matters until 2012. Of course there is agreement between Sinn Féin and the DUP on how to deal with these matters until 2012 and on how to shaft the SDLP. There is agreement on how to depart from the rules of inclusion according to democratic mandate, show patronage to one party and discriminate against another that has a democratic entitlement. I resent that agreement between Sinn Féin and the DUP, but I am not jealous of it.

Earlier, the Member decried the fact that the UUP will support some of the SDLP amendments but not others. I have no qualms about agreeing with another party where possible, but we will always retain our position. Unfortunately, when Sinn Féin agrees with the DUP, it ends up adopting the DUP’s position. I am proud that we have not adopted the UUP’s position of not wanting a deadline or target date for devolution. We do, and that is our clear position. We have not surrendered our position or been distracted from it for the sake of agreement with the UUP or any other party.

Sinn Féin claims to believe in inclusion under d’Hondt, but it has departed from that position completely. Where did the deadline of May 2012 and the sunset clause come from? The sunset clause was the fig leaf that Sinn Féin produced in desperation to over up the fact that, in July 2008, the deputy First Minister agreed with the First Minister that the justice Ministry would be established on the basis of a cross-community vote at all times. In our recent talks, the DUP boasted that it had a permanent veto and would be able to use that to veto any Sinn Féin Minister. The DUP also told us that it may agree to a member of the SDLP being appointed Minister of justice at some stage — that was nice of them — but its main point was that it would permanently be able to veto anyone from Sinn Féin being appointed Minister. It was only when we pointed out the folly of Sinn Féin’s negotiation and its concession to depart from d’Hondt and democratic inclusion for this post, not just temporarily or for the first appointment but for all time and in perpetuity, that Sinn Féin desperately tried to recover its position.

When we pointed out Sinn Féin’s folly, the First Minister asked us to ease off because the process was going nicely for the DUP. He told us that difficulties had been created only because we had alerted Sinn Féin to the problem. Perhaps we contributed to making sure that Sinn Féin saved itself, to a degree, from its mistakes.

However, its answer has given the rest of us a serious problem because of the effect of the sunset clause as it is framed. We did not frame it in that way; we did not invite the threatened dissolution of the Department. The fact is that, as things stand, the dissolution of the Department will have fundamental implications, not for the Police Service of Northern Ireland — it is constituted outside of the Department and has a separate legal constitution — but for the Prison Service, the Youth Justice Agency, the Compensation Agency and Forensic Science Northern Ireland.

We are told that that situation will not come to pass. I really hope not. All of us will have to work very hard to make sure that that does not come to pass in those terms. All of us will have to make every effort, because we cannot afford it. However, whether all of us will be allowed to play a role in that regard is another matter because, as we have seen in a large part of this process, we are told that we have responsibilities but that we have to wait until we get the call, cue or invitation before we are able to say or address anything that is relevant to our responsibilities. Sometimes the rest of us only get a role in trying to unravel some of the problems and difficulties and in trying to unhook people from some of the hooks onto which they have climbed.

If things can be done to avoid having an impasse in 2012, let us do them. The first thing that we could do is correct this legislation. That would help. We could make sure that we have an option now, in the short term, so that we do not have to go only by the cross-community-vote, departing-from-the-agreement route; or we could make sure that, as a way out of the dissolution crisis that we could face in 2012, we would have the safe fallback of d’Hondt.

People tell us that we should think positively about this process and that we should forget all the experiences of the past two and a half years and have wonderful expectations of the next two and a half years. That is great; I hope that it is all sweetness and light and Shangri-La in May 2012. However, if people are so confident that it will be so good and will all work very well and very positively, why not have d’Hondt as the fallback? The danger is that, by having the device of the sunset clause with the dissolution of the Department, we are creating a temptation for parties to play chicken, to use leverage, to manipulate things, to grandstand and to barter on other issues.

Even this week, we have seen how an issue like the devolution of justice and policing is being used to gain leverage and purchase on all sorts of other issues that are completely unrelated, hardly related or, in some cases, are being quite dangerously interrelated in a way that is unwarranted. When we know how people use those devices to create trouble and difficulties and to create stand-offs and all sorts of stand-and-deliver tactics, why so casually legislate again for that on a matter such as this?

Everything that I have said so far has related very much to the issue of the Department. I listened to Naomi Long from the Alliance Party and somebody from Sinn Féin trying to say that the SDLP goes on about the Minister as though it is its Ministry and that people are not talking about the Department. The questions that I have raised are about the Department and its role and stability. We cannot say that this legislation absolutely guarantees the stability of the Department, because it is the one Department whose dissolution is legislated for. If we want to have confidence to say that its stability is guaranteed, we should be addressing these issues. That is what our amendments are about.

I do not believe that it would be too tall an order for the First Minister and deputy First Minister to make the sort of report that is requested in proposed clause 2A, which would require them to come to this House and soberly, clearly and plainly address those issues on the basis of the best legal and Government advice.

I do not doubt the capacity of the House to make the judgements that must be made within a week or two weeks, conscious of the parties’ voting strengths. Thus, despite people trying to say, as Simon Hamilton did, that we are not being “real” politically, the fact is that we are being very real politically about where the balance of forces lies in the House. However, we are trying to take at their word people who say that they still want d’Hondt; the amendment gives them the chance for that, either in the near future or by 2012. Similarly, the amendment gives those who say that they are concerned about stability, about ensuring that there is confidence and about making sure that the Department is durable a way of avoiding the very dangerous, potentially nightmarish, sunset clause.

Regardless of which party nominates for the position of justice Minister or what means of appointment is used — d’Hondt or cross-community vote — May 2012 may not be the first test of that Minister’s position. An Assembly election is scheduled for May 2011 but may take place sooner. The Minister may or may not be re-elected to the subsequent Assembly. Whether or not the Minister is re-elected, a cross-community vote will still be required for the election of a justice Minister in the new Assembly.

After the Assembly election, parties will be thinking very seriously about the May 2012 sunset clause. Therefore, while the parties negotiate the formation of the Government, how to run d’Hondt and the Programme for Government, there will inevitably be negotiations about who should be elected as the justice Minister by cross-community vote. Parties will be tempted to front up some issues in relation to May 2012, and, in those circumstances, they might be naive not to indicate some of their ambitions and intentions in respect of May 2012.

Hence, it might well be that after the Assembly election we wait some time before we appoint a Minister, because the relevant 2009 Westminster legislation provides that the Executive can be formed on the basis of running d’Hondt for all the other ministerial posts. The Executive can be formed on the basis of the First and the deputy First Minister being appointed and all the other posts being filled. The Executive can continue without the justice portfolio being allocated.

At least after May 2011, there would be a justice Department and there would not be a question mark over the Prison Service, the Compensation Agency and the Youth Justice Agency. In those circumstances, there would be a Department without a Minister, whereas in May 2012, we could potentially have a Minister without a Department. Therefore, under the Bill’s current provisions, we may not have to wait until May 2012 before difficulties emerge and games of chicken are played.

The Member is indicating that the legislation, as it is currently penned, is not competent. His argument is that the legislation could create the scenario of having a Minister but no Department. Surely, as the report went through the Assembly and Executive Review Committee, the Assembly and Westminster and is now back in the Assembly, some of the highly qualified individuals in all those places would have copped on that we were putting legislation that is not competent through Westminster and the Assembly. However, the Member is telling us that the legal eagles in his Front Bench have spotted it, revealed it and are now bringing it to the public’s attention.

I advise the Member that this is not a recent discovery. When the legislation was going through Westminster, I and others pointed out that issue, and the Government did not contest it. The Government did not contest that that scenario would be the effect of dissolution. The only thing that the Member, because he is not contesting —

On a point of order, Mr Deputy Speaker. Is it in order for the Assembly to debate or discuss legislation that is not competent?

The legislation that is in front of the Assembly, Mr O’Dowd, has been deemed by the Speaker to be competent.

I am not the first Member to refer to the sunset clause, which is also part of the twin legislation in Westminster that, similarly, provides for a departure from d’Hondt. In the Second Stage debate and today, Sinn Féin strongly relied on and invoked the sunset clause, and it talked about there being no fallback position.

(Mr Deputy Speaker [Mr Dallat] in the Chair)

The sunset clause deals with the Department’s dissolution: it does not address whether there will be a Minister or not, so the position seems to be that there could be a named Minister in limbo with no Department. Of course, the twin Westminster legislation also ensures that, in the event of an election, the Assembly’s failure to elect a justice Minister by cross-community vote will not prevent the Executive being formed and the other Ministers being appointed to discharge their duties. Therefore, the scenario has been legislated for.

I did not write the legislation: other parties supported it and said that it is all about generating confidence, certainty and stability. Nevertheless, in 2011, we could end up with a Department without a Minister for a long time, when other Ministers will have been appointed and will be doing their business. In 2012, we could end up with no justice Department but with a notional Minister floating in the ether like a lost boy or girl in a strange land. Mr O’Dowd may be right to question whether that legislation is competent and sensible. For a lay person, it does not seem like a competent or sensible way to govern; however, it is the way chosen by Sinn Féin, the DUP and the British Government.

The substantive reason for clause 2 is to gerrymander the appointment of the Minister; it is the provision to bypass the laid-down rule for democratic inclusion and proportional representation in the Executive. I agree with Naomi Long: the d’Hondt mechanism is not the only mathematical formula that can be used to effect democratic inclusion. However, rightly or wrongly, it is the only one set down in the Agreement and in the Northern Ireland Act 1998. Others mechanisms may be favoured, and, during the talks, we canvassed for others, but we had no takers for any of them. Some parties liked the d’Hondt mechanism either because they had experience of it in the European Parliament or because they had suggested in proposals and talks in previous Assemblies that it would be a good way to share committee positions. However, there was no interest in other mechanisms, such as the Sainte-Laguë system. We have no problem with looking at those sorts of things in the context of a properly constituted review of the Agreement and based on the principle that it is about a finding means of democratic inclusion. We do not, however, entertain the idea of abandoning d’Hondt in favour of anything like voluntary coalition.

Contrary to what Martina Anderson said, the SDLP has been clear and consistent about what I said in the speech that I made in Oxford, when I robustly defended d’Hondt both now and in the future. I also roundly condemned Sinn Féin for departing from d’Hondt in respect of the justice Ministry and for being prepared to completely abandon the principle of inclusion by democratic mandate in the comprehensive agreement in 2004, when Sinn Féin insisted that parties had to vote for First Minister and deputy First Minister if they wanted to be included in Government.

Consequently, the SDLP and UUP would have been excluded had they not voted for DUP and Sinn Féin candidates for First Minister and deputy First Minister. It was only the SDLP’s talks with the DUP before the St Andrews Agreement that prevented that from happening. The position of Sinn Féin, the British Government and the Irish Government was that inclusion would not be by democratic mandate; rather, parties would only be included if they submitted their mandate to the parties of the First Minister or the deputy First Minister. When the SDLP was negotiating d’Hondt in the Agreement, it negotiated true inclusion, not just for itself or with traps to get other parties to exclude themselves. Of course, when Sinn Féin was doing it, it did so to suit itself, and to hell with anybody else, even other nationalists.

No one else had democratic rights unless they bowed the knee to Sinn Féin. I am proud of the fact that the SDLP stood for inclusion according to mandate. That is why we stand by it now. We would stand by that principle regardless of which party found itself in this predicament or which was to be the victim of this deviation from the norm.

We are given nonsense explanations as to why this should not be the norm. Yet again, Martina Anderson misquoted section 17 of the Act and particularly subsection 4. Section 17 of the Act states that for there to be more than 10 Departments, consent must be given by the Secretary of State. That applies even now; it applies to the method, the Bill, that other Members are supporting. The approval of the Secretary of State is needed. [Interruption.]

Alex Maskey says that the SDLP is looking for a way that needs the consent of the Secretary of State, but the way that Sinn Féin is going needs the consent of the Secretary of State. For there to be an extra Department, consent must be given by the Secretary of State. [Interruption.]

Order. Remarks must be made through the Chair.

I want to make the point to Mr Maskey that the creation of an extra Department to bring the number of Departments to more than 10 needs the agreement of the Assembly on a cross-community vote. That is the point on which Martina Anderson misquotes section 17(4) of the Northern Ireland Act 1998. She said that section 17(4) means that if there is going to be an extra Department, the Minister must be elected by cross-community vote. Such a presentation is a sleight of hand. The cross-community vote is required only to agree that there should be an extra Department, beyond the total of 10. The Secretary of State’s consent is required as well. That condition applies if the appointment is by d’Hondt, and it applies equally to this Bill, which is the way that Sinn Féin has chosen.

I thank the Member for giving way. Will the Member confirm that, whatever about having to go to the Secretary of State, these decisions require agreement between people here before we go anywhere? If that is the case and the Member accepts that, can he tell us with whom he can get agreement about any of this? He has not told the House that.

That is what we are in the business of doing here by way of this legislation. It is what we are trying to do in the Assembly and Executive Review Committee. However, those are not genuine all-party negotiations for two reasons: there are questions as to how well all parties are represented in those discussions, and also because those discussions are confined —

On a point of order, a LeasCheann Comhairle. Is it in order for the Member to question the integrity of the Assembly and Executive Review Committee? That is what the Member has just done. That is a fundamental question that must be addressed by you, as Deputy Speaker. It is a serious statement to make.

I leave it to the Member to explain.

Allow me to clarify: I said that one could not call the Assembly and Executive Review Committee an all-party negotiation because, first, there is a question as to how well-represented all the parties are. Is the Member saying that all parties are on that Committee? They are not. That is a limitation of the Assembly and Executive Review Committee. [Interruption.]

Secondly, that Committee finds itself constrained because some things are subject to determination, decision and cues from the First Minister and the deputy First Minister. A lot of these matters were already pre-determined according to the very flawed negotiations that took place between the First Minister and the deputy First Minister. Indeed, that is where the sunset clause came from; it was an attempt to unravel some of that damage. Therefore, the Assembly and Executive Review Committee has not been getting an entirely free run on those issues.

That is where we see the “now you see it, now you don’t” game from Sinn Féin and the DUP. Sometimes it is all just them, and aren’t they the boys? It is just the two of them, and they can do everything together. Suddenly, at other times, it is everybody: all parties have responsibility and we are all involved. They speak with forked tongues and are two-faced in so many ways. Those parties are responsible for the inconsistencies and contradictions.

The reason that the SDLP opposes clauses 2 —

On a point of order, Mr Deputy Speaker. I again ask you to reflect on the Hansard report of the debate, because the Member has clearly stated that Sinn Féin and one other party are speaking with forked tongues. Is that appropriate language for a debate in the Chamber? It is a serious allegation, and the Member may well have lost the run of himself because he has forgotten where he is.

I did not hear anything that was unparliamentary, but part of the reason for that might be that Members are ignoring the Chair and are not conducting themselves in the fashion that I expect. If Members speak through the Chair I will have a better chance of hearing what is being said.

I want to address some points that Members made in opposing the amendments proposed by Alex Attwood. Members have questioned our position and suggested that we said that the Minister of justice post is ours and ours alone and that no other party should get it. During the Second Stage debate on the Bill and in the meetings that the SDLP held with the First Minister and the deputy First Minister, I said that the best course to follow was to create a Department of justice from within the existing 10 Departments; after all, the DUP has told the House that it already thinks that there are too many Departments, yet it wants to create another one.

Under the Northern Ireland Act 1998, it is feasible to rejig or merge Departments and create a Department of justice: it can be done. The First Minister and the deputy First Minister can put such proposals to the House and have them passed by cross-community vote. Therefore, contrary to what Naomi Long said earlier, it is entirely within the competence of the House to vote and ensure that we stay within the 10 Department limit. The First Minister and the deputy First Minister could have used their powers to do that and could have run the d’Hondt process. As such, it would neither have been the SDLP claiming that the justice Ministry was its entitlement, nor would it have been a departure from d’Hondt or the Good Friday Agreement. Rather than Members saying that the SDLP’s purpose was to bag the justice Ministry and that no other parties could have that Ministry; that was the way to go. That way is open, and the SDLP has pointed it out on several occasions.

I appreciate that the Member may have been consistent in his personal position. However, the issue that I raised was not that it was outside the competence of the Assembly to create a Department of justice from within the 10 existing Departments; it was that it was not politically feasible to do so. [Interruption.]

Again, the Member is speaking from a sedentary position. There is no agreement to create that Department from within the existing 10 Departments. Furthermore, although the Member has been consistent; his party colleagues have not. Today, SDLP Members made interventions claiming that they were entitled to the justice Ministry, not just an eleventh Ministry, and stated that the d’Hondt process should be used for the appointment of the Minister of justice. The Member may be consistent but there is no consistency in his party.

I appreciate that intervention and I will reply to it. The Member said that it would not be politically feasible to absorb the justice Ministry into the existing 10 Departments. Why not? It was politically feasible for the First Minister, when he came back from Florida, to say that he was going to kill dead things and reduce the number of Departments. If that is politically feasible, why is it not politically feasible to create a Department of justice from within the existing 10 Departments? There is no reason why it would not be feasible: the fact is that parties were not tested on it. The only party that canvassed that position was the SDLP.

I was present when the First Minister made the speech on his return from Florida, when he stated that he wanted to reduce the number of Departments. However, I ask the Member: has that happened? Has the First Minister been able to affect that change? He has not, because he would require more than just his own opinion to do so: the weight of his views would have to be carried by the House.

It is one thing to talk about it; it is quite another thing to do it. The Department of justice could not have been delivered from within the 10 existing Departments because there would not have been agreement to do that. That is the point that has been made today.

I remind Members to focus their attention on the amendments under discussion.

We are speaking to clause 2 stand part as well as to the amendments, Mr Deputy Speaker, and that is why some of those issues are relevant. Members have been questioning whether d’Hondt is a viable option and asking what running d’Hondt as specified in the Good Friday Agreement would mean. It is pertinent to address those issues, particularly given that the SDLP position was questioned and misrepresented at great will earlier in the debate. Therefore, we have to be allowed some room to counter and to account for ourselves. It would also demonstrate consistency.

Therefore, to have the justice Department as one of 10 Departments would have been a feasible option. There is no reason that that should not have been proposed, thought about or discussed. The SDLP certainly did that. We made it clear in various conversations that that was our position, not just recently, but going back to last year, when we had conversations with the DUP on the third floor of this Building. Of course, the party then said that that could not be its position. The DUP could not afford to agree to run d’Hondt for the justice portfolio because that would mean that it could not exercise a veto. That is it, plain and simple.

The SDLP advocated that position all along. However, the DUP, for all its claims that it is worried about the cost of government and about having too many Departments, is insisting on creating an extra Department for its own political necessity and to be devious. That proves the hypocrisy and humbug of the DUP. It says that we do not need 10 Departments, yet it is making damned sure — sorry, Mr Deputy Speaker, darn sure — that we get 11 Departments, not including the Office of the First Minister and deputy First Minister. That is another example of doublespeak, or whatever parliamentary term accords with forked tongue, two faces, and so on.

If we are not to run d’Hondt for the justice portfolio as one of 10 Departments and there is to be an additional Department — the Secretary of State’s consent and cross-community support in the House is required for that — in order to be consistent with the Good Friday Agreement and the 1998 Act, d’Hondt should be rerun to take in the justice portfolio. The SDLP is open to that. However, we gathered very quickly that the view of other parties was that a rerun of d’Hondt would be too disruptive to other Ministers, could lead to speculation games on policies and could disrupt the Programme for Government.

If other parties are agreeing to there being 11 Departments but that ministerial posts cannot be filled through rerunning d’Hondt, two things can happen. First, d’Hondt could be rerun with all the parties agreeing the order in which they are nominating Ministers. Remember, that has happened before. Parties had agreed their choices in advance of d’Hondt’s being run in the Chamber in 2007. A dry run of d’Hondt had taken place, and parties were free to change their choices if they wanted in the Chamber, but that would have been in defiance of an agreement that they had reached. Legally and technically, however, it would have been within parties’ rights to do that. Therefore, parties could reach an all-party agreement to let d’Hondt run and let the justice portfolio be the eleventh choice.

Secondly, on the basis that Sinn Féin and the DUP have said that they are not taking up the post, d’Hondt could be run in the knowledge that the DUP and Sinn Féin are going to pass up on the post, and it would then depend on whether the Ulster Unionist Party nominated first to the position or the SDLP did. D’Hondt would be run, consistent with the agreement.

Of course, Martina Anderson tells us that that is the great “Ha ha” — the great “Gotcha” — to the SDLP position, because such a scenario would allow unionists to nominate the justice Minister. Well, D’Hondt is run according to the principle of democratic inclusion. That is in the agreement for which the Irish people voted, and if we have confidence in the agreement and our institutions, that is that. We are not saying that for a unionist to hold the post is the worst thing in the world. Therefore, it seems strange that Martina Anderson and her party are trying to say that a great confidence is breaking out, that there will be a brave new world, that there is no question of there being any difficulties with the May 2012 date, and all the rest of it, while at the same time insisting that a unionist not be allowed to take the position and stating that the SDLP might have entertained a unionist in the role.

There are ways in which to handle the matter. A rerun of d’Hondt up to the eleventh post has been ruled out, even on the terms on which Sinn Féin and the DUP had already decided that they were renouncing taking up the justice portfolio— a renunciation that they would simply practise during the rerun. That leaves the remaining option, which is that if there is to be democratic inclusion under d’Hondt, that that be done simply by means of a d’Hondt top-up. That would mean that parties’ portfolios for none of the other 10 Departments would change, and the eleventh Ministry would to the eleventh choice under d’Hondt. If the Alliance Party had the eleventh choice under d’Hondt, I would be supporting that option. I have said that before not only in the Chamber but in other meetings, talks, negotiations and chambers.

Contrary to Naomi Long’s earlier unworthy allegations, the proof that we are sincere was demonstrated when previous Secretaries of State suggested legislation for various models for devolving justice and policing. One version stated that Ministers could be appointed by a cross-community vote, and there was provision that a Minister could not be from a designation other than unionist or nationalist. Although my party and I did not agree with departing from the Good Friday Agreement by way of departing from d’Hondt, we were not going to agree that, when people were legislating to depart from d’Hondt, there should be further discrimination built in against the Alliance Party. On the Floor of the House of Commons, I protested to the Secretary of State that that was double discrimination; it was preventing the due run of d’Hondt and inclusion, and it specifically excluded one party. Even if that party were democratically entitled to the position, it would have been excluded. If the Alliance Party had a bigger representation here in the future and, therefore, was entitled to a ministerial position under d’Hondt, it would have been excluded on the cross-community basis. That would have been direct discrimination against one party, and the SDLP protested against that because it was wrong. We do not do discrimination or exclusion, unlike the parties that are opposing our amendments.

We heard earlier from the Alliance Party, and, in an intervention, my colleague Declan O’Loan spoke of how that party had strongly trailed itself here as the party of principled opposition. It is no secret that other parties are talking directly and intently about the Alliance Party’s providing the justice Minister. Neither is it a secret that the Alliance Party leader, in particular, is being named. He is being named not only by Members but by the Government and the Secretary of State. Let us stop the pretence about the issue. Let us not pretend that there is not an expectation about done deals or anything else. Let us bring a bit of honesty and reality to the issue. The Alliance Party, which was the voice of principled opposition, will come into government on that basis; the opposition will be no more, and the principle never was. That is the position that we will have.

For instance, the leader of the Alliance Party has already received confidential security briefings, and I know that he has been asked to back off and calm down on issues such as a shared future. Last week, some of us inadvertently discovered that those sorts of untoward approaches were being made to the Alliance Party leader by the British Government. The party was asked to quieten down about a shared future in the countdown to the devolution of justice and policing, and, because that was rumbled, the Alliance Party suddenly went into hot and heavy mode late last week about the devolution of justice and policing and a shared future, and it appeared to introduce its own precondition.

Get your timetable right.

Mr Ford might tell me to get my timetable right, but we know the timetable of the e-mail to the Liberal Democrats in which he might not have said that it was time to be nice to Shaun Woodward, but he did say that Mr Woodward was trying to do the right thing in the current situation and that, perhaps, people should go easy on him. We do not work like that. I used to think that the Alliance Party did not work like that either, but we have discovered differently.

It is for that variety of reasons that we are in this situation. It has corrupted not only d’Hondt and the Good Friday Agreement but there is evidence that it is corrupting the Alliance Party. We are seeing that today, for instance, by virtue of the different language that is being used. We are seeing traces of the voluntary coalition that the Alliance Party wants. It wants a voluntary coalition with Sinn Féin and the DUP, so it is happy to get into the practice of voluntary coalition. Sinn Féin betrayed democratic inclusion when it supported the exclusion of parties that did not vote for the First Minister and deputy First Minister, and, at that time, it was basically opting for voluntary coalition because the principle that a party should be in govern­ment only if it votes for the heads of government is part of the theory and understanding of voluntary coalition. Sinn Féin was justifying that.

In fairness, the Alliance Party has been consistent in that, and Sinn Féin has been totally inconsistent.

Are we being corrupted or consistent?

The Alliance Party is being consistent on the issue of a voluntary coalition and corrupted on various other issues, including the shared future and the whole notion of principled opposition. I recall the leader of the Alliance Party telling us that they were in opposition as a matter of principle. In one interview he said that even if they were entitled to a post, they would not take it because they thought that this place needed opposition. He even said that in relation to the justice Ministry. The Alliance Party held the position that it would not even take the justice Ministry because this place needed the Alliance Party in opposition. Of course, that has changed. [Interruption.]

This is very much about the Bill; this is about the problems of clause 2 and the entirely false arguments that were raised against the SDLP’s amendments and its opposition to clause 2.

The SDLP has been able to demonstrate that its amendments do nothing to wreck the Bill or to prevent the devolution of justice and policing. It has not tabled its amendments as preconditions that would stand in the way of the devolution of justice and policing. None of our amendments, if they were legislated for, would be a barrier or an impediment to the devolution of justice and policing. They would not stop anything from proceeding on a given date. They would ensure that things proceeded according to the agreement if no vote had been taken to do things outside the agreement, which is what other parties want. Nothing would stop.

There is the idea that the SDLP’s amendments would create a crisis in 14 days. They would not. They would create certainty in 14 days: certainty that would be well fuelled by the confidence that the public could take from the fact that in agreeing this we were agreeing that once we started a process, that process would continue to full devolution in a reasonable time. There would also be the confidence that would come from the statement that could be made by the First Minister and the deputy First Minister, not just dealing with the issues of 2012 and allaying the different concerns and interpretations that might exist around the sunset clause and whether the fallback arrangements may or may not come into play.

In addition, the statement that we are asking the First Minister and the deputy First Minister to make in our second amendment would include a statement on the functions of the Department of justice. In conversations with the First Minister and the deputy First Minister and others, the SDLP has suggested that questions regarding the functions of the Department of justice are valid and should be examined. The Department should not be defined just by taking the functions, the personnel and the premises from the NIO. If we are talking about a serious project of devolution, let us think about the character and the remit of the Department.

Some functions that are currently devolved could sensibly move to a Department of justice. This is not about party turf and party territory; in my view, the functions that deal with licensing laws, etc, which currently rest in DSD should, very sensibly, go to a Department of justice. Of course, that would have to be proposed by the First Minister and the deputy First Minister and go a vote in the House. However, there are similar functions in other Departments. Various legal functions are tied up in DFP for no other reason than it was felt at the time that there was nowhere else for them to sensibly go. However, they could fit in with a Department of justice. The licensing function rests with the Department of Justice in the South and with the Home Office across the water, and sensibly so. Those are sensible, straightforward things that could be addressed in the report that the First Minister and the deputy First Minister would make, and they could, possibly, be adopted and reflected in the resolution that the House would adopt under the SDLP’s amendments.

The SDLP’s amendments are not meant to wreck anything; they are meant to achieve devolution, and to get it done in good, sound and well thought out terms. This group of amendments is not proposed to wreck anything; it is proposed to prevent the wrecking tactics that could come in 2012 and to prevent the uncertainty around the re-election of a justice Minister — or the failure to re-elect a justice Minister — that could happen in 2011. We could do without all of that uncertainty.

That uncertainty about 2011, on top of all the budget difficulties that we will have and the strains that we will be under at that time, could be too big a temptation for some parties.

We do not feel, on the basis of the experience that we have had, that we can be blasé about those things and simply believe that the worst-case scenario will never come about. As good legislators, we are trying to ensure good prospects and good outcomes, rather than legislate for bad ones and just hope for the best.

I declare an interest as a member of the Policing Board. This stage of the Bill is another important step towards the devolution of policing and justice, although one would not think that, given the Armageddon attitude of the SDLP. Much of what has been put forward by the SDLP runs contrary to what has been agreed by the Assembly and Executive Review Committee and the Assembly, and that, of course, is deliberate.

Although the proposer of the SDLP amendments argued that there has been no agreement on certain issues, considerable work has been done, and that work is ongoing. Agreement has been reached on a number of issues pertaining to policing and justice, and further agreements will be made in preparation for devolution. All those amendments have not been proposed in the interest of resolving those matters. Indeed, the SDLP Members seem to be very good at telling us what they want but not how they would go about getting what they want while taking account of the stark political reality, as everyone else has to do.

It is similar to the debate about academic selection, when, for more than two years, they criticised the Minister for her proposals but gave absolutely no alternative. What alternative did they give at the end of that debate? The retention of the 11-plus — the status quo. That is no surprise.

Similarly, today, they have no alternative based on the political reality of what we in Sinn Féin are doing in regard to policing and justice. They would probably not mind if the status quo were to remain in this case too, so that they could engage in further politically opportune attacks on us. That is all the SDLP is about these days: attacking Sinn Féin at every opportunity, regardless of how serious the consequences might be. We, however, will continue to build on the political progress made and will not feed into those negative political agendas.

The devolution of policing and justice should happen sooner rather than later, as the Minister of Finance and Personnel has already said, especially given the substantial amount of money that has been secured from the British Government. It would be extremely foolish of us to look that gift horse in the mouth. The sunset clause and the 2012 date create an imperative on everybody to secure agreement, and people will want to see a locally accountable Minister in position post 2012; not a fly-in, fly-out British Minister from across the water.

I have been listening to much of what Mr Durkan said. He mentioned side issues, and Members in his party have referred, in recent weeks, to the full-time Reserve and parades, and they have given out misinformation, particularly in regard to the comments that they made about members of the strategic review into parading, which were simply untrue. The SDLP needs to check its facts. Perhaps that party was feeding the public misinformation for political opportunism.

We should not spend too much time discussing the proposed amendments, because they are mischievous and a waste of time. The reasons for tabling the amendments are politically opportune; they demonstrate the SDLP’s negative attitude and the fact that that party is about nothing but scoring points against Sinn Féin. One could be forgiven for thinking that the SDLP is working hard to ensure that the devolution of policing and justice does not come to pass. To date, its contribution to the Bill has been extremely unhelpful and stands in the way of the devolution of policing and justice, rather than helping it. Go raibh maith agat.

Go raibh maith agat, a LeasCheann Comhairle. It has been a lengthy debate on policing and justice, and perhaps rightly so, but I suspect that the SDLP contributions have relied on quantity rather than quality. SDLP Member’s contributions can be condensed down; they have probably lasted around two and a half hours so far.

Despite that party’s valiant attempts at the end of each contribution to claim that its opposition to the Bill as it stands is a based on concerns to do with d’Hondt and concerns about the Good Friday Agreement, the vast majority of its Members’ contributions so far have been on the needs of the SDLP: they have been about the Social Democratic and Labour Party; the party, rather than the people whom it is supposed to serve.

We would not even be at this stage of discussion on policing and justice if the SDLP’s view had been upheld in the previous debate. If the SDLP had had its way in September 2009, policing and justice would have stopped. Transfer of those powers would have been over. We would have gone back to year zero because the SDLP wanted to vote down the Bill.

Despite the SDLP’s valiant attempts, we have now reached Consideration Stage of the Bill. We are currently discussing the amendments that the SDLP tabled, as it was perfectly entitled to do. However, it cannot table those amendments on the basis that the Bill is not competent, because the Deputy Speaker has already made a ruling on that. The Assembly can only discuss legislation that is competent. I assume that the same rules are adhered to in Westminster, and I am confident, despite the comments of Mr Durkan, that the Assembly and Executive Review Committee is more than capable of producing a report that fits in with the competency of the Assembly.

The SDLP’s argument, through its amendments, is that the Assembly and the public are incapable of reaching agreement within 30 months. According to that argument, Armageddon will fall upon us all at the end of those 30 months, and the creatures of the night will come out to rule society.

However, let us consider the position of 30 months ago. This institution had not elected its Executive, we were at the tender beginnings of that process and we were not involved in the legislative process. A few months before even that, few commentators or politicians were convinced that we would be able to reach agreement, but Sinn Féin and the DUP worked to reach a deal. In fact, the SDLP laboured on that issue at great length. At the height of the negotiations among Sinn Féin, the DUP, the British Government, the American Government and the Dublin Government, it proposed that we should abandon those talks and introduce a commission of businesspeople because the politicians would not be able to work it out.

I have a direct correction to make. The SDLP never made that proposal during negotiations.

Is that right?

The SDLP made that proposal during a prolonged period of suspension that had no end in sight and when no talks were in prospect. It was not made during any talks or any negotiations. Again, Sinn Féin has completely misrepresented the facts.

I am sure that the Deputy Speaker will allow me some latitude as I deviate from the Bill to explain where the SDLP stood on that matter. Does the SDLP honestly believe that negotiations never stop? Does the SDLP really believe that the public forum is the only forum in which political negotiations take place? Of course negotiations were going on. They may not have been intense or pointed, but they were going on. In the middle of that, the SDLP said that politicians would never agree; the Shinners and the DUP would never agree. It suggested that an unelected and unaccountable comm­ission of 10 businesspeople be introduced, not by d’Hondt or by cross-community support, to run this place.

The SDLP amendments to the Bill try to convince us that, despite its serious concerns, its observation is that we will not reach agreement until after 30 months. I do not know whether we will or not. I know that the politicians and the community outside are capable of reaching an agreement. Despite all the odds, they have proven that. However, the SDLP —

The note that John has been passed can be read some other time.

It says:

“Can you advise John to sit down?” [Laughter.]

The SDLP tells us that, although we will not reach that agreement in 30 months, under its proposals, we will reach it within 14 days. Later, in the second part of the debate, we will discuss amendment No 6, which asks for 7 December 2009 to be inserted into the Bill as devolution day. Therefore, the SDLP tells us that, by 21 December, we will have reached political agreement on the way forward, everything will be rosy in the garden, and the SDLP will have corrected all of Sinn Féin’s — in its opinion — negotiating mistakes. The DUP will have explained where Sinn Féin is going wrong, and the SDLP will have sorted everything out. The SDLP suggests that, by 21 December 2009, there will be a permanent, immovable, unshakeable justice Department.

The Member says that that will occur by 21 December 2009. Having listened to previous contributions from Members on the SDLP Benches, will he accept that that will actually occur within two weeks of Royal Assent being granted to the Department of Justice Bill; not within two weeks of devolution day? Potentially, therefore, it would be earlier than 21 December.

I am glad that Mr Hamilton pointed that out, because that makes it even more stark; there is even less time to reach agreement. We will not reach agreement within 30 months; however, we will do it within a couple of weeks. That is the logic of the SDLP’s argument. Despite the two-and-a-half-hour-long contributions that have been made by the amendments’ sponsors, I have not heard anything that contradicts that logic.

Why has the SDLP tabled those amendments? Are they an attempt to make the SDLP relevant to the discussion on the transfer of policing and justice? That is, quite possibly, the case.

The Member has castigated my party for its target date of 7 December 2009. He says that it is unrealistic. Does that, therefore, mean that Sinn Féin no longer takes the position that the transfer can be achieved before Christmas? That is its public and private position. It has said that it must be done before Christmas. Gerry Adams said that clearly and categorically. Have I got that wrong, or does Sinn Féin now resile from that position?

I am more than happy to correct Mr Durkan on that point. Sinn Féin has said that the deal is required to be done before Christmas. There is no reason why a deal on the transfer of policing and justice cannot be completed before Christmas. In legislative and practical terms, that does not mean the establishment of a policing and justice Department before December. However, an agreement on the date, process and operations of that Department is more than achievable before Christmas.

The motivation behind amendments is as important as the amendments themselves. I hope and wish that the SDLP would join with other parties who attempt to ensure that policing and justice are transferred to this institution, that they fall into local hands, and that the new Department carries out the remit for which it is required. As I said earlier, the issue is not about the needs of the SDLP, Sinn Féin, the Alliance Party, the DUP or the Ulster Unionist Party; it is about the needs of the communities whom we serve. They are crying out not only for a locally accountable policing service, but for a locally accountable justice system that meets their needs. At present, it does not.

Martina Anderson mentioned occasions when she, as an elected representative in the city of Derry, requires access to a local Minister. All Members could think of examples of times when they need access to a local justice Minister or, indeed, to a justice Committee in the Assembly to ensure that criminal legislation that is passed meets their communities’ needs. That does not happen at present.

If other Members have workable, practical solutions to the problems that the Assembly faces, I can assure them that Sinn Féin is all ears. However, the amendments that are before the House do not offer those solutions. They will not ensure the transfer of policing and justice powers; they are only a furtherance of SDLP contributions to previous debates, which would mean an end to discussion of the transfer of policing and justice.

I move on now to who should hold the post of Minister and why my party supports the arrangements in the Bill. We must build confidence in the new Ministry because the lack of accountable policing and justice systems was at the heart of the conflict that we endured for more than 30 years. Members from the unionist Benches spoke about their experiences of the conflict; our experiences were clearly different. The justice and policing systems were used against, rather than on behalf of, the community.

An Ulster Unionist Party contributor to the debate talked about the Minister of Home Affairs. I assure him that I can think of no previous Minister of Home Affairs who, in the opinion of the nationalist community, served it fairly, equally or justly. Those Ministers were used to introduce repressive legislation against communities from the 1920s to the 1970s, when they were replaced by British Secretaries of State, who followed on.

The nationalist and republican communities who endured the worst of those excesses must have confidence in a Minister of justice. Cross-community support is the best way in which we can deliver that essential element of confidence at this time. I am always bemused by the SDLP’s constant references to how it corrected Sinn Féin and saying that had it not been for the SDLP, the entire process would be blah, blah, blah.

I am more than happy to listen to contributions and take interventions from any political party. It would be foolish of any party, including mine, not to listen to fellow politicians during public or private negotiations. I can give an assurance, however, that Sinn Féin did not need the SDLP to point out anything during the wider debate on the transfer of policing and justice. In the words of Alex Attwood, we went into the negotiations with our “eyes wide open”, and they remain wide open. We are conscious of the difficulties that we have overcome and those that we face. We continue to believe, as we have throughout a difficult process, that we can overcome any problems through co-operation with everyone around the table. If, at times, we have to go on alone, we will. Sometimes, that is the way it has to be in politics; it is a difficult post.

Sinn Féin has ruled out only one party from taking the post of justice Minister; that party is Sinn Féin. The Democratic Unionist Party ruled itself out. Why? Both parties believe that they need to instil confidence in the post. If the SDLP can agree and nominate a candidate, Sinn Féin is on record as saying that it will support that nomination. Today, Mark Durkan revealed that there has been ongoing dialogue for a considerable time between the SDLP and the DUP. I must take note not to have a private meeting with Mark in case details of it end up in the middle of a debate, but that is another matter.

If, during discussions with the DUP, Mark Durkan or the future leader of the SDLP can convince the DUP that the SDLP has the best person for the job, so be it. That would be good, but Sinn Féin cannot convince the DUP of that. Sinn Féin cannot provide the DUP with a reference for the SDLP; it is up to the SDLP to do that.

The SDLP’s current strategy as wreckers of the Executive and wreckers of the transfer of policing and justice does not allow any political party to take it seriously. Today, its role in political life is to wreck. If I were sitting on the Benches opposite, I would be placing a major question mark over approaching a party that seems intent on disrupting the whole political process or advancing its political cause above what everyone else is doing.

The transfer of policing and justice presents challenges ahead for us all. The situation is not ideal, but the Bill is what is required at this moment in our collective history in order to move forward.

It is decision time on policing and justice. We have been through a long, complex negotiation, and we have succeeded in many ways. Collectively, the DUP and Sinn Féin have succeeded in securing an extra £1 billion for the justice package from the British Government and the British Treasury. That alone is a remarkable contribution to society. However, if policing and justice powers are not transferred, that contribution will not be made, and there will be a continuing deficit in the policing and justice budget. In fact, in the run up to the next CSR period and the next Budget, the British Government may make major cuts to all our public services.

All the political parties have a lot of soul-searching and decision-making to do. The DUP and Sinn Féin have major decisions to make; the SDLP and the Ulster Unionist Party, in particular, have decisions to make too, because as long as the Ulster Unionist Party plays cheerleader for the TUV, the Members on the Benches beside it will continue to look over their shoulders and wonder what is going on.

I thank the Member for giving way. Will he enlighten me on comments that his party leader made this month? Mr Adams said that the DUP is in breach of the commitments that it entered into at St Andrews. Will the Member expand on what those commitments are and how the party is in breach of them?

I suspect that the Member knows the answer to that question, because any politician who asks a question that he does not know the answer to —

Order. Members must focus on the issue that is being debated.

We certainly agree. I assume that my party leader was referring to May 2008, which has now passed, when he made those comments.

I support the Bill and oppose the amendments for the reasons that I have given. As the days tick by, there is no point in debating the legislative process in the Chamber; we must now enact legislation to appoint a justice Minister and a justice Committee and start dealing with the matters that affect all in our community. Go raibh maith agat.

Through its amendments to the justice Bill, the SDLP is seeking to ensure that the public is best protected and served. It is important to remember that the Bill is about providing good community policing and robust local justice powers. Sinn Féin, in particular, has stated that there should be no further hurdles to the devolution of justice and policing. The deputy First Minister and other Sinn Féin members are on record calling for devolution before Christmas. I, therefore, ask that they consider supporting our amendments today and committing to devolution by December 2009.

I want to focus on some of the issues mentioned. I was interested to hear Anna Lo highlight one such issue that is of concern to the community. She said recently:

“It would be nearly impossible for progress to be made on issues such as policing and justice if we don’t have a shared future strategy agreed urgently.”

We remember the whirlwind of bad publicity worldwide over the intimidation that forced Romanian families out of their Belfast homes. We are in the teeth of a financial crisis; yet cash is being wasted on maintaining the division. Therefore, the best way to safeguard vital front line health and other services is to sort out our shared future.

It was my understanding that the Alliance Party signed up to the Good Friday Agreement and its protections, but, apparently, they are not now entirely supportive of it. The Alliance Party has no qualms about accepting the post of justice Minister that is provided for under legislation that bars half the community from applying for that post.

Let me make it crystal clear for anyone who has not been listening: the Alliance Party has not said that it would have no qualms in accepting the justice Ministry. The Alliance Party has not been offered the post; therefore, it has not responded to any such offer. As I have said in the past, although Members seem unwilling to listen, the Alliance Party has not said that it would have no qualms in accepting a justice Ministry. However, we have been crystal clear about wanting to see reform of the institutions with regard to how the Executive is formed.

I apologise; I obviously took the Member up wrong.

Nevertheless, it begs the question: what is the DUP’s job description for the justice Minister’s post, which openly excludes an SDLP Member? It says, in other words, that no nationalist need apply. According to Ms Anderson, a unionist justice Minister, from either the Ulster Unionist Party or the DUP, would not be acceptable to the Sinn Féin electorate. Therefore, it is a mutual veto.

I did not say that that would not be acceptable to the Sinn Féin electorate. Under its outgoing leader, the SDLP has had six electoral defeats. I said that the republican and nationalist community will not accept a DUP or UUP Minister. If the Member had her finger on the pulse of the community she would know that.

That is exactly what I said. However, I do not believe that the SDLP electorate would be opposed to either a unionist or nationalist justice Minister who was appointed fairly.

How much has really changed? Is this about community confidence or is it about discrimination and sectarianism? Whichever it is, it is extremely depressing.

As a solution, we have heard the DUP, Sinn Féin and Alliance Party cross-community design to ensure that a nationalist Minister may not be appointed. That principle — that a nationalist need not apply — is what the SDLP is concerned about. What if the DUP and Sinn Féin change their minds and throw out an Alliance Party justice Minister? What mechanism will we use then?

The Member referred to the relationship between different parties. However, her own party lauded the fact that the SDLP, the Ulster Unionist Party and the Alliance Party are great wee parties that could work together and govern the place fine, as long as the rest of the parties were kept out. If I remember correctly, the SDLP fought a number of election campaigns on that basis.

I do not agree with that statement; the SDLP has always supported inclusive politics.

For most of the population of the North, community confidence is about how we deal with victims of crime, the imprisonment of offenders, the provision of youth justice services and ensuring that we have the best resources, such as state-of-the-art forensic science technology, so that we can catch criminals. All those issues are dealt with in the amendments that have been proposed by the SDLP. None of those issues appears to have been considered by the other parties.

In September, the SDLP held a conference on youth justice, during which we outlined our plans and proposals for the reform of the current youth justice system. At that conference, party members heard testimony from Sarah Holland, the daughter of murdered west Belfast greengrocer, Harry Holland. Mr Holland’s killers were given lenient sentences after it emerged that that the Public Prosecution Service had struck a bargain that resulted in some of the charges being dropped. Ms Holland told the assembled audience that her family had learned the hard way the failings of the criminal justice system. Her family described the PPS and judiciary as inefficient and not fit for purpose to address crime in the twenty-first century.

So, there are many questions. How do people experience policing in their neighbourhoods? What powers will come our way? Will the system that we inherit need a radical overhaul? It is clear — and not only from the experience of the Holland family — that the fear of crime in communities is high while the level of public confidence in the justice system is low. Our justice system must exist to serve the public by offering protection, by instilling competence in its agencies, by serving the needs of victims and by preventing reoffending. Only when we recognise those issues — as the SDLP has done in its amendments — can we even begin to think about tackling the real problems.

It is in our interest as a society to ensure that crime and antisocial behaviour are tackled effectively. Society as a whole will benefit from such a system. We must begin at the most basic level by calculating benefit through increased public savings.

I recollect speaking about two years ago in this Chamber about the disparity in child protection regulations and the registration of sexual offenders across the island of Ireland. In today’s amendments, the SDLP recognises the need for further consideration of the management of offenders. Rather than the squabbling between the DUP and Sinn Féin, we should be debating the best way to cope with the issues on an all-island basis. It is imperative that our child protection system should be safe and have the confidence of the people of Ireland on both sides of the border. It is imperative that there be full co-operation in both jurisdictions to adopt the best possible practice —

Order. I ask the Member to return to the issue that we are discussing.

I understood that we were talking about competence in the justice system and how we can achieve that. I apologise if I misunderstood.

We are talking about the amendments to the Bill.

I beg your pardon, but I am talking about community confidence. My remarks have been far more direct than some of what I have been listening to since noon. [Interruption.]

Order. I ask Members to respect the Chair and to make their remarks through it. I am doing my best to chair the debate, and I need the support and help of those Members who are shouting across the Chamber.

We need to concentrate on community confidence.

It is interesting that, in August last year, David Ford recognised that the Executive were failing in their duties and not dealing with the substantive issues. He said:

“The Alliance Party will not be taking the Policing and Justice Ministry. This Executive is failing in its duties, so Northern Ireland needs a strong and coherent opposition. We are providing that opposition and we will continue to do so.”

What has the DUP promised the Alliance Party in order to change its mind? Has it promised to publish the long-overdue and fought-over cohesion, sharing and integration strategy? It would be great if that strategy was published, but surely it would happen anyway. Securing that should not require the rights of half the population to be neglected.

All the parties in the Chamber should consider supporting the SDLP amendment to oppose clause 2 standing part of the Bill, in order to protect the democratic voice of all communities in Northern Ireland. All parties must then agree a date for devolution so that we can get on with dealing with the substantive issues, such as youth justice, helping victims of crime, the imprisonment of offenders, enhancing North/South work on policing, child protection and the provision of the best up-to-date ways to catch offenders. I support the SDLP amendments.

We are a considerable way through what has been a very long and unproductive debate. There have been close to six hours of discussion, and I hesitate to say that we are any further on.

Frankly, we have heard approximately three hours of contributions from the SDLP, which has not made one iota of progress towards convincing anyone of the merits of its proposals. If anything, the party has illustrated its own confusion and highlighted the quite destructive role that it is playing in the potential devolution of policing and justice.

I have strong ambitions for this society and strong liberal principles. I have a clear notion of how society should be organised and governed. However, as a politician, I am a pragmatist, and I must recognise that policing and justice powers have not been devolved. I dearly want that to happen. I think that we are ready for it, and I think that society needs it. The Bill is part of the mechanism by which we will achieve that. Therefore, although we might need interim arrangements and a fix of some description to get there, we must be clear that our actions are making progress in society. Over the past 10 to 15 years, progress has sometimes been extremely tortuous. However, it is important to keep making progress.

Although it is in everyone’s interest to gain as much clarity as possible, we must be realistic about what is achievable at the moment. We have reached a measure of agreement on how devolution can occur, but we must find further agreements in the immediate future through which to make further progress. We should be thankful that we can make those steps in the right direction. We should not create a situation in which the perfect becomes the enemy of the good.

My colleague Naomi Long gave a substantial tour de force on the issue, and I do not intend to repeat everything that she said. Indeed, I will endeavour to be in the lower half of Members’ speaking times during the debate. I will seek, as far as possible, to discuss the amendments. I will respond to the comments of the Member from the SDLP who spoke previously. My colleagues and I are more than happy to engage in full and detailed discussion on criminal justice policy in Northern Ireland. There is much to be said and much to be done. Frankly, that is not the topic of discussion today; we are having a supposedly focused debate on the amendments.

The central issue of the debate and the amendments is, perhaps, the notion of a cross-community vote versus the use of d’Hondt. Mrs Hanna referred to the Alliance Party’s support for the Good Friday Agreement. The Alliance Party did support the Good Friday Agreement; we were extremely proud to do so and extremely proud of the role that we played for 30 years to help Northern Ireland to reach that point. However, although we were not comfortable with some aspects of governance in the Good Friday Agreement, we made a decision to support it in the round. We gave our support despite those aspects, not because of them. It is perfectly legitimate for us to make arguments for improvement.

On 10 April 1998, it was not the case that a group of individuals who were infused with some special wisdom laid out a set of institutions and mechanisms that were right for that time and for every day in the future. Our society is constantly changing, and our institutions need to evolve. The Alliance Party has been clear about its agenda for reform of the institutions. Indeed, we published a substantive document about seven years ago named ‘Agenda for Democracy’, which set out our proposals, particularly those for moving towards a voluntary coalition approach to Executive formation and for changes to the voting system and designations. There are different ways to provide cross-community power-sharing governance. We are open to such a debate.

The principles that lie behind the Good Friday Agreement are important. The d’Hondt process is not a principle; it is purely a mechanism of proportionality, although not a very good one.

Although the Alliance Party has an agenda for reform, we embrace the mechanisms that are set out in the Bill as positive influences on that agenda. Not for one minute, however, do we think that it represents a sudden lurch towards the voluntary coalition in which we believe. I want to make it clear that, from our perspective, any party could be a part of a voluntary coalition.

We have several criticisms of d’Hondt. First, it creates a system under which Ministers can make solo runs. I will correct Alan McFarland, who said earlier that d’Hondt was the best way of providing inclusive government. Even from the Ulster Unionist Party’s perspective, there are concerns about the way in which Ministers have been able to make solo runs in the Chamber. I will give two examples: on the one hand, the Sinn Féin Minister of Education can pursue proposals that do not have the support of the Assembly, but because her party got the education portfolio, the Sinn Féin perspective dominates in that area, and everyone else has to suffer that. The DUP did something similar. There was a groundswell of support in society for the establishment of an independent environmental protection agency. However, because the DUP controlled the Department of the Environment, it was able to impose its will and frustrate that development.

The d’Hondt system does not lend itself to power sharing. It lends itself to carve-ups of power, in which different parties get control of different sections of the agenda. Consequently, we do not have collective outcomes that are fashioned across the political divide. That is the essence of power sharing: ensuring that the interests of every section of society are taken into account in decisions, and d’Hondt does not lend itself to that.

The potential move in the legislation towards giving any Minister of justice a sense of cross-community legitimacy is a positive suggestion. I will clarify how that fits into our longer-term agenda. The Alliance Party made a proposal at the St Andrews talks that even after d’Hondt had been used to select Ministers, there should be an overall —

Order. The Member must return to the amendment.

OK. I am grateful for the Deputy Speaker’s guidance. I am trying to make a point about how a cross-community vote, which is set out in clause 2, and which the amendment would remove, can play a positive role in providing cross-community legitimacy and making it parallel. The Alliance Party wanted that vote to ratify the entire Executive, and there is a precedent for that in the case of the European Commission.

I am loathe to challenge the Member’s technical ability to talk about d’Hondt, but will he accept that it is just a mechanism for selecting Ministers and that it does not govern the powers of Ministers when they are appointed? The Member mentioned the establishment of an independent environmental protection agency, but that has to do with the powers of a Minister and is not related to the method by which Ministers are selected.

It is also a reflection of the limited breadth of the Programme for Government, which allows Ministers to make solo runs in areas that are not covered by it. I take the Minister’s point and I will place it in that context.

I want to make some points about whether d’Hondt is an inclusive system. First, d’Hondt is a very blunt form of proportionality. It carries the risk of distortion in that it is biased in favour of larger parties and groupings. It is also biased in favour of sections of society that are more cohesive and united. For example, if there were a situation where there were two unionist parties and three nationalist parties, or vice versa, the section of society with the fewest parties would do better under d’Hondt. A section of society should not suffer as a consequence just because it is more fractured than another. However, that is one of the consequences of the system.

Secondly, the d’Hondt mechanism runs the risk of creating substantial anomalies. To explain the risks that are inherent in a system that is supposedly so fair and inclusive, I will give three examples of where d’Hondt has gone off the rails badly. During the 1996 Forum elections, the d’Hondt system was used to allocate seats. In Lagan Valley, which I will discuss in a minute, five unionists were elected. No one from any other section of the community was elected, yet I know for a fact that at least 20% of people in that area are not unionist. Is it right and fair that d’Hondt was used to exclude those people?

Equally, in the Foyle constituency, where I accept that there is a significant unionist minority, the use of the d’Hondt system returned five nationalists and no unionist representatives whatever.

Perhaps the most farcical example of the use of d’Hondt lies in this Assembly and concerns the formation of the Executive. If one looks back to the Executive —

The Forum.

Yes, the Forum. The first Assembly Executive between 1998 and 2003 had a 50:50 ratio of unionists and nationalists. Perhaps 99% of the population of Northern Ireland and most international commentators thought that that balance was written into the Good Friday Agreement.

I am sorry. I would like some clarity. I was confused when the Member spoke about what happened in Foyle. He mentioned that the election was run by d’Hondt. Can the Member explain that, please?

Without going into too much detail of electoral systems, a list system was used whereby the seats were allocated on the basis of the d’Hondt formula. I am happy to explain it to the Member after the debate so that I do not detain everyone, but it is a matter of public record that that system was used for the 1996 Forum elections.

The 50:50 split of the Executive between 1998 and 2003 was effectively an accident of how d’Hondt worked out. Given that, at that stage, unionism was fractured among a multitude of parties and nationalist parties had two seats, the system effectively brought a balance of 50:50 between the two blocs. Since then, there have been fresh elections, and we have a new Executive. The balance between unionist and nationalist politicians is now 60:40 in favour of unionists.

Since the first Executive were formed and into the formation of the second, there has been an increase in the number of nationalist politicians in the Assembly. We are in the bizarre situation of having an increased number of nationalist seats in the Chamber and a decrease in the proportion of nationalist seats in the Executive. So much for the all-inclusive, very effective system of d’Hondt.

The SDLP has now recognised the limitations of the d’Hondt system, even though it notionally seeks to defend d’Hondt at every quarter in the Chamber. In Lisburn City Council, it has quite rightly realised that d’Hondt works against the interests of inclusion of all sections of the community, particularly nationalist representatives. We support what the SDLP has sought to do in Lisburn by challenging that, but the position that its councillors have taken is completely at odds with the position of the party in the Chamber. That issue has not been addressed so far.

The SDLP has made great virtue of its opposition to all forms of discrimination and its favouring of inclusion. I remind the SDLP that it defends tooth and nail the system of designation and the associated voting system. That system discriminates against my party and any other party whose representatives in the Chamber do not align themselves with unionism or nationalism. Votes from my section of the community count for less in cross-community votes. That is not a good advertisement for inclusive governance, and that system needs to be changed significantly.

As many Members mentioned, the implications of selecting a Minister by a cross-community vote include the security of tenure of a Minister of justice, whether he or she is from the Alliance Party or another party, and the potential for that Minister to be a puppet. Naomi Long made the point that any Minister in the Executive could potentially be a puppet and that Ministers from the Ulster Unionist Party and the SDLP are particularly vulnerable to that risk. The risk of puppetry exists across the board, but we are extremely conscious of that aspect of the legislation. Our support for that system is balanced; it is a new departure for the Assembly as regards cross-community legitimacy and it is the right way to go.

I wish to clarify how the risks relating to security of tenure can be managed. The most effective way of reducing those risks is to have as much agreement and discussion as possible on what a Minister of justice and the Executive will seek to do regarding policing and justice policy in advance of devolution. I will resist the temptation to speak in detail, as Carmel Hanna attempted to do, on what should and should not be done. However, I will say that devolution must be a process rather than simply an event that takes place on a particular day, after which we sit back and relax.

The more agreement there is on policy issues, the more protection a Minister of justice will have. The greater controversies in the Assembly have occurred in areas in which Ministers have sought to take actions as individual Ministers outside the context of an agreed Programme for Government. At the time of its inception, my party was critical of the Programme for Government’s shortness, its lack of detail and breadth and its omission of some controversial issues. Progress has been relatively smooth in areas in which there has been agreement. However, the areas in which there has not been agreement have brought chaos to the Chamber.

It is in the interests of anyone taking the post, and of society as a whole, to have as much consensus as possible in advance of devolution. That may even involve an addendum to the Programme for Government. Security of tenure would thereby be addressed, because the Minister will be seeking to deliver on a Programme for Government. The Assembly, and society in general, will rely on parties to act in good faith to resolve some of the difficult residual issues.

If, as speculation suggests, a member of the Alliance Party takes on the position, that person will not be interested in being merely a caretaker in office who keeps the seat warm for two years while important decisions are taken in the outside world. If a Minister from the Alliance Party were confronted by other parties and placed in a difficult situation, I imagine that he or she would stand by the policy principles that have already been agreed.

Other amendments in the first group refer to the risk of a Department of justice collapsing after May 2012 if agreement has not been reached.

Many Members pointed out the extraordinary predictions of doom and catastrophe that have come from the SDLP Benches. It was articulated that there is a fail-safe mechanism. It may not be the most desirable way to do things, but we must recognise its existence.

Even if we leave aside the current legislation, it is entirely within the competence of Westminster to legislate for further steps and protections at any stage at which it wishes to do so. If we faced a crisis, it would be the height of irresponsibility for any British Government to stand back. I am certain that, even under a Conservative Government, that would not happen.

Perhaps Dr Farry could enlighten us. He referred to the provision in the Westminster legislation as being a fail-safe mechanism and that at least we could rely on it being there. Three parties support the Bill: one party told us that there is no fail-safe or fallback mechanism whatsoever; another party told us that there is, arguably, a fallback mechanism but that it does not believe that that would be politically reliable; and Dr Farry said that there is a fail-safe mechanism. All three parties have different versions. Does that not press the need for the sort of report that is outlined and required by our amendment?

I sense that we are almost being encouraged to panic at this stage. Many assumptions are being made about failure. The differences that Mr Durkan pointed out among parties reflect the SDLP’s agenda. Perhaps we should be blunt and frank about what is happening. From Sinn Féin’s perspective, there is clearly an agenda to take policing and justice out of the hands of the British state and place them in the hands of locally accountable politicians in Northern Ireland. I fully respect that agenda. I understand where that party comes from, and, to a considerable extent, I agree.

From my party’s point of view, given that we support the principle of consent — and, no doubt, from the unionist parties’ perspective, given that they support the Union — we do not have a fear of Westminster’s legislating to provide safeguards for a situation in which the Assembly is in difficulties. It has happened in the past, and it may happen in the future, although I hope that that is not the case. I suspect that, behind many of today’s discussions, the issue is not about a report from the First Minister and deputy First Minister seven days after the Act is passed but about the intra-nationalist battle over who is delivering on policing and justice and who is not and trying to paint Sinn Féin into a corner.

The SDLP has played a destructive role, particularly in the past few weeks, in trying to whip up hysteria over issues and deals that are being done behind the scenes, or in the open, to undermine A, B and C. That has not done the SDLP any credit. It certainly has not sped up the process of devolving policing and justice. If anything, it has created obstacles and barriers and has stoked up fears.

The SDLP raised issues, some of which involved criticisms. None of the issues involved obstacles, barriers or preconditions. Other parties, including the Alliance Party, create preconditions that stand in the way of the earlier devolution of policing and justice.

In relation to the Parades Commission, the SDLP stands prepared to pounce if Sinn Féin gives a chink of light and says anything other than —

Order. The Member should return to the amendments.

I shall endeavour to return to the matter that is before us. I shall give an example of Mr Durkan’s point about the Bill and the amendments. It is a matter of record that the SDLP voted against the Second Stage of the Bill. For a party that nominally supports the devolution of policing and justice, that is completely illogical.

The consistent thing to do would have been to support the Bill’s Second Stage, which would have amounted to no more than supporting devolution and the creation of a Department of justice and then have the debate at Consideration Stage about how to proceed. However, the SDLP voted against the legislation at Second Stage. If its arguments, if one can call them arguments, had found favour with the majority of Members, we would not be any closer to devolution happening; we would be further away. The amendments do not do anything to advance the devolution of policing and justice; they create further distractions and obstacles. We are engaged in purposeless political games.

We must try to be as optimistic as possible about the way forward. There was a sunset clause in the St Andrews Agreement regarding devolution. That challenge was met. By debating the devolution of policing and justice today, we have partly met that challenge. We have already made some progress, and there is more to be made. If parties find agreement and devolution happens, the prospects of reaching a further understanding ahead of May 2012 will be significantly advanced. To a degree, we are talking ourselves into a false sense of crisis before one occurs.

I shall draw a parallel: the Assembly faces the challenge of agreeing Budget legislation twice a year. The consequence of failing to pass that legislation would be that no Departments would have the legal authorisation to spend money. Perhaps, that is the one scenario in which Alex Attwood’s prediction of things grinding to a halt would come to pass. However, on every occasion so far, the Assembly has risen to the challenge of passing the Budget legislation, even in situations in which there were very difficult and controversial issues to be discussed. Therefore, the Assembly has a positive track record of meeting the challenge of deadlines for finding fresh agreements and of banking agreements that have allowed us to make progress until now.

In the event of the Assembly not agreeing Budget legislation, the Department of Finance and Personnel has a reserve power that it can use. I had cause to research that matter on a particular occasion. Therefore, it would not be a case of everything grinding to a halt, which is markedly different from the dissolution provided for in the sunset clause. We do not want to see that come about, but we did not legislate for it; other people did, and they have to explain it.

I am grateful to the former Finance Minister for that correction, but that is another example in which we have a fail-safe. Hence, we need not panic.

Our society is divided. There are contentious issues to handle, and we are taking steps forward gradually. It is important that Members see the Bill in the light that it enables us to get over the first major hurdle towards achieving something that we have not had so far — the devolution of policing and justice. Parties have defined their terms for how far they are prepared to go, and they can find agreement at this stage based only on temporary, interim provisions. From my perspective of wanting to see the devolution of policing and justice happen, I think that that is the positive way to go. Let us get the justice Department up and operational.

We must acknowledge that there are further challenges down the line. Things may well get rocky, in keeping with the SDLP scenario, but let us be optimistic that we can sort out the situation. If we cannot do that, the British Government have step-in powers. Frankly, if there is a sense of crisis in 2012, the crisis may be much bigger than policing and justice; it might involve the legitimacy and the continuation of the institutions as a whole. At that stage, we will have to ask about the fallback position in respect of other powers.

The notion of a potential crisis is inherent in ours or any other system. When it comes to the formation of Governments internationally, it is not unusual after elections to have an interim period during which parties have to find agreement. If parties cannot agree, the consequences are potentially severe. Time after time around the world, parties rise to that challenge, so we must back ourselves to do the job. We must have trust and faith in ourselves. If we decide to take devolution forward on the basis that we have to legislate for every contingency for failure, we will damn the whole project as unobtainable. Given that every party in the Chamber has staked its political reputation on the success of devolution, such a conclusion would be a sobering position to reach.

Finally, given that there has been much speculation on the subject, I wish to clarify the Alliance Party’s position, to which my colleague Naomi Long referred. The Alliance Party is extremely supportive of the devolution of policing and justice. We want it to happen, and we see strong rationales for it. Like any other political party or set of political representatives, we have an interest in ensuring that devolution is done as well as possible in the circumstances that we find. This legislation allows that to happen.

There is a lot of speculation about the Alliance Party’s role. The Alliance Party has not been invited to nominate a Minister, although that may well be the case in the future. We have not said yes or no to any offer. The party has made it clear that it is prepared to be constructive, as it always has been in the Chamber, and that it will do what is in the best interests of the people of Northern Ireland.

Surely the Member’s party has already said no. Mrs Hanna clarified earlier that it said no.

A lot of parties have created a small industry in interpreting what the Alliance Party has said. However, let me be clear, on behalf of the Alliance Party, about what we have said: in the summer of 2008, the Alliance Party said no to a half-baked situation whereby a Minister could be appointed outside the Executive, in essence a puppet Minister, something about which so many people have warned us. The legislation that went through Westminster in March 2009 was categorical about the fact that, just like any other Minister, the Minister for policing and justice would be a full member of the Executive. Therefore, that situation has moved on.

As things stand today, the Alliance Party’s judgement will be based on what is in the best interests of the people of Northern Ireland. Unlike the SDLP, which has been making a virtue of its entitlement to the Ministry, the Alliance Party has never advertised such an entitlement. We have responded to speculation, but we have never chased the post. We have made it clear that we are prepared to be constructive on the way forward.

The Alliance Party’s benchmark for determining what is in the best interest of the people of Northern Ireland will relate not only to how the legislation is taken forward today but, when further progress is made, to whether a Minister is prepared and able to deliver on behalf of those people. There is no point in a Member from the Alliance Party or from any other party serving at the top of a Department and being part of the Executive if he or she has no ability to deliver on policing and justice issues. Frankly, devolution depends on a continued process of building confidence. Confidence is not something that will be achieved before devolution; it is an ongoing process. After devolution, confidence will depend on the system, which includes a Minister —

I remind Members that mobile phones and Blackberries are not allowed in the Chamber.

Confidence depends on the ability of any Minister, the Executive and the Assembly as a whole to demonstrate the benefits of devolution and how it can make a real difference to people’s lives.

I shall conclude by reiterating the point that we have been stressing: it is critical that, in advance of devolution, as much discussion as possible takes place and as much agreement as possible is found on the policy programme for the Department and on what the Assembly and the Executive will be seeking to do. For Members who have concerns about security of tenure and any potential puppetry, that is the best safeguard. It is the best signal that can be given that the Assembly is serious about devolution making a real difference to people’s lives.

This legislation is an important milestone. It gets us from A to B. There is still a long journey to be made, but it is important that we take those steps, small as they may be, in the right direction. Unlike other parties that seek to play a negative role, the Alliance Party continues to play a constructive role in seeking to find peace, stability and a shared future in this society.

On a point of order, Mr Deputy Speaker. It is becoming a very cold House for unionists. I am not sure whether that affects the whole House, but it affects the unionist side. Could we have that matter dealt with?

I thought that it was quite warm.

I call the deputy First Minister, Mr Martin McGuinness, who will probably warm things up.

Martina Anderson, who is sitting beside me, has been shivering for the last hour.

A vicious rumour circulated at the time of the Second Stage of the enabling legislation on the devolution and transfer of power that Alex Attwood was going to speak for an hour. In the event, he did. In retaliation, the First Minister spoke for nearly two hours. After that, I reminded the First Minister that he lives only five minutes from here, but I live two hours away. I was horror-struck when someone who lives in the same city as I do, the Member for Foyle Mark Durkan, began to speak today. As he went on and on, I thought that he was going to continue until 2012.

On the serious matter of the business in which we are engaged, the House should be in no doubt whatever about the purpose of the grouped amendments that we have been discussing: it is to remove clause 2 from the Bill, either directly or indirectly. The direct approach is through the opposition of SDLP Members to clause 2 standing part of the Bill. The indirect approach is through amendment Nos 1, 2, 3 and 4, the combined effect of which is to create an unnecessary device of considerable legal complexity that will effectively add another stage to the legislative process. If those amendments are successful, the Bill will be returned to the Assembly for review within days or weeks of its enactment.

Let me remind the House where clause 2 comes from. On 18 November last year, the First Minister and I attended a meeting of the Assembly and Executive Review Committee. Following that meeting, we made public a letter that we had issued earlier that day to the Chairperson of the Committee in which we set out our agreed position on a number of matters, with an accompanying process paper detailing the steps by which devolution would be achieved.

In our letter of 18 November and in other corres­pondence with the Committee at that time, the First Minister and I indicated our preferred arrangement for appointing a Minister of justice. Our preference was that the process be one in which nominations would be invited from Members of the Assembly, and the successful candidate would require the support of the majority of Assembly Members, present and voting, including a majority of designated nationalists and a majority of designated unionists voting.

The Assembly and Executive Review Committee was clearly content with that proposal, and that was reflected in the report that it prepared on the devolution of justice and policing responsibilities. The recomm­endations in the report deal with the departmental structure, the powers to be transferred and, crucially for the debate on this clause of the Department of Justice Bill, the arrangements for appointing the Minister of justice. On 20 January 2009, the Assembly approved a motion endorsing the Assembly and Executive Review Committee report. That is the basis for the model of ministerial appointment set out in clause 2. It is the model originally proposed by the First Minister and me, and it is supported by the Assembly and Executive Review Committee. The Assembly approved that model when it considered the matter in January.

The arrangements for appointing a Minister of justice under clause 2 are interim arrangements. The First Minister and I made that clear a year ago when we announced the basis on which we would move towards the devolution of policing and justice responsibilities. Those arrangements would last until May 2012, at which point the Department of justice would dissolve unless the Assembly were to extend those arrangements by resolution or devise alternative arrangements. Those arrangements were also reflected in the legislation passed at Westminster earlier this year.

Before May 2012, the House will have the opportunity to review the ministerial arrangements and decide whether it would prefer an alternative. The House will have more opportunity for considered thought on the matter than the fast-track arrangements that amendments Nos 2, 3 and 4 would allow for reviewing legislation that it had only just passed.

Amendment No 2 would also compel the First Minister and me to deliver to the House a report that the amendment conveniently drafts for us. In response to the heading set out in that amendment, the functions to be exercised by the Department of justice are those that were identified in the Assembly and Executive Review Committee’s report of March 2008. There is a sunset clause for the ministerial arrangements in clause 2. It is contained in schedule 1(8)(1) to the Northern Ireland Act 2009. The consequences of the dissolution of the Department of justice would be severe, but that is precisely the incentive for the Assembly to devise permanent arrangements before May 2012. That would be the gist of the report that amendment No 2 would require us to make. The objective of the report mechanism is to provide a further opportunity for criticism of the arrangements that the First Minister and I agreed last November. Those arrangements were reflected in the Assembly and Executive Review Committee’s report of January 2009 and were endorsed by the House at that time.

The Assembly will have much opportunity to debate the details of the devolution of policing and justice before devolution day. The resolution request for the transfer of powers will be debated and will require cross-community support. The determination of ministerial offices will be brought to the House, and the new justice Minister will be elected by the Assembly with cross-community support. There is no shortage of Assembly scrutiny of the process, and I look forward to all those stages.

A number of points were raised during the debate. Alex Attwood again raised his claim that there is a fallback position that would prevent the sunset clause from taking effect in May 2012. He rests that claim on his reading of several sections of the Northern Ireland Act 2009 and the 1998 Act, as amended. The Department does not believe that the provisions that Mr Attwood relies on could ever have that effect, because the conditions attached to a Westminster Order in Council to impose a ministerial model would cease to exist with the passing of the Department of Justice Bill. In effect, that option among the menu of ministerial models will be spent once the Assembly legislates.

I understand the point that the deputy First Minister has made. However, I put two observations to him in reply. The first is that, although he indicated certainty with respect to the sunset clause, that is, to some degree, in tension with his own officials. At the OFMDFM Committee meeting of 14 October 2009 which considered the justice legislation, departmental officials said that, after the Second Stage of the Department of Justice Bill:

“we took the opportunity to consult people who were closer to the drafting of the Northern Ireland Act 2009. They stated that it was never the intention that the interpretation … placed on the particular provision would apply to frustrate the operation of the sunset clause. It was not intended that there would be a hidden fallback mechanism.”

The official went on to say that, ultimately, those matters would have to be decided by a court.

There is a tension between the deputy First Minister’s certainty on that matter today and what was indicated to the Committee. In any case, the crucial point is that the deputy First Minister is quite right to say that the legislative provisions for what a Secretary of State can do will not apply to the first Department. In the legislation, however, the Secretary of State reserves unto himself the right to act in respect of a new Department that would be necessary in the event that, on 1 May 2012, the Department of justice as it then existed is dissolved. The legislation states that the Secretary of State reserves power in respect of the new Department that would be necessary to avoid what the deputy First Minister described as the severe situation that would obtain in the event of the dissolution of the first Department in May 2012.

I thank the Member for his contribution but remind him that Paul Goggins, during the debate on the 2009 Bill at Westminster in March this year, said:

“The Bill provides no fall-back position beyond May 2012. Frankly, it is not for us in this place to determine any additional model beyond that period; it is a matter for the Assembly…There is no fall-back position, as I have said, and it is entirely a matter for the Assembly.”

He went on to say:

“The parties themselves will have to determine the model beyond May 2012. We are devolving policing and justice powers; we are not saying that we are partly devolving them and saving a little for ourselves. The matter is entirely for those parties.”

He makes it absolutely clear.

The SDLP has adopted a doom-and-gloom approach to the debate. It has been made clear that, as we agree this process, move forward and put in place a Department of justice and a Minister of justice, there will be a huge responsibility on the Assembly and the Executive to ensure that we arrive at a scenario in which we can continue seamlessly in the event of us all being returned, if we stand in the election of 2011, to see through the process of ensuring that we have in place arrangements that will ensure that the dispensing of justice and policing is managed by this Administration.

I am not looking at this matter from a doom-and-gloom perspective or thinking that we will never succeed or that there are 30 months left and we will never agree on anything. I approach all matters that confront us in these institutions as a problem solver. If we all apply ourselves to that business, there is nothing that we cannot accomplish as we move forward and overcome the obstacles and challenges that lie before us.

Danny Kennedy raised the issue of the justice Minister being a puppet. The justice Minister, like any other Executive Minister, will have full legal authority. He or she will be bound by the Pledge of Office and the ministerial code. Consideration is being given to whether any amendments will be required to the ministerial code as a result of the devolution of policing and justice. However, any amendment to the code will come before the Assembly for approval and will not come into effect without cross-community support.

Alan McFarland asked what would happen if the justice Minister was not returned at the 2011 election. The Minister would cease to hold office, and the Assembly would have to elect another, with cross-community support. That is effectively provided for in the Westminster legislation.

The six amendments that the SDLP has tabled lie at the heart of this debate. It is my strong view that the SDLP is ignoring the political reality of the circum­stances that we are dealing with at the moment and that the transfer of policing and justice powers was never really on the SDLP’s agenda until Sinn Féin put it there.

I was a Minister in these institutions from December 1999 until October 2002, during the period in which Seamus Mallon and Mark Durkan occupied the position of deputy First Minister. Not once did I have a conversation with either of my two colleagues about their views on whether policing and justice powers should be devolved. I did not hear it mentioned during any Executive meeting, and I was never invited by the SDLP to a meeting to discuss the possibility. Indeed, for many years after that, there were no discussions on the issue. The issue never raised its head from the SDLP’s perspective.

I thank the deputy First Minister for giving way. May I remind him of a conversation that took place in the office of the deputy First Minister early in my tenure, which was similar to one that I had with Gerry Adams, the Sinn Féin president? During that conversation I indicated that among the options that I was pursuing in discussions with the First Minister was the possibility of appointing additional junior Ministers from Sinn Féin — the difficult issue was going to be whether or not there would be any from the DUP — and of having an additional adviser as a programme manager for each of the four parties in the Executive. One issue that I said that I wanted to address in that context was how to make progress towards the devolution of justice and policing, in the circumstances where we had the Patten report and the Policing Board in place. Sinn Féin was opposed to the Policing Board at that stage and was not prepared to embrace the debate around the devolution of justice and policing.

Anybody who looks at the record of that period and at the public discourse from political parties around what were or were not priorities at the time will fail miserably to see any effort by the SDLP to raise the issue of the transfer of power in the way that Sinn Féin has raised it since we became the largest nationalist party. I say that because the issue is not important just for Sinn Féin. We argue for the need to transfer powers on policing and justice for the same reason that Ian Paisley gave for doing so in one of the first meetings that I had with him, and I know that many members of the DUP concur with this. As a member of a devolutionary party, he believed that local politicians could do a better job than Ministers who were coming over from England, Scotland and Wales. The transfer of policing and justice powers would be a good thing, and I think that many Members believe that, because all the parties agree with it in principle. As Carmel Hanna said, it would make a real difference for the people whom we represent across the community in delivering a better justice system and a more accessible court system.

As we move forward, we have to be conscious of the fact — at least, I am conscious of the facts — that the SDLP is making a huge mistake. I say that because, at its rawest, the truth is that, if the SDLP approach were to succeed, we would never see the transfer of powers on policing and justice, because the SDLP is ignoring the political realities.

I listened to Alex Attwood’s contribution. He said that he had struggled so long to make this happen. That is a new one on me. We have struggled to make it happen, and many people in the community who have voted in election after election have made their own judgements as to who was delivering on policing and justice and many other issues related to the institutions. Those people have made their decisions; the people have spoken, and they have done so powerfully.

Will the deputy First Minister give way?

I will give way in a minute; I do not want to have my train of thought interrupted. I listened carefully to the Members who were arguing for the amendments. SDLP Members spoke for something in the region of three hours. Members gave way to them left, right and centre. I do not have a problem with that, but it was clear from the initial contributions from SDLP Members that they were more concerned with the SDLP’s entitlement to the justice Ministry.

When Mark Durkan began to speak, he realised the mistake that was being made. This was being seen as a selfish demand from the SDLP, and Mark Durkan tried to move the issue from the SDLP’s entitlement to a defence of d’Hondt. At that stage, I was really confused. Mark Durkan’s Oxford speech clearly confused an awful lot of people several years ago and indicated clearly to many that at that time that the SDLP was prepared to move away from the election processes established under the terms of the Good Friday Agreement and the St Andrews Agreement.

Will the Member give way?

Let me finish.

At that stage, within hours of the speech being made, I remember that David Simpson, the MP for Upper Bann who was deemed an apostle, proclaimed that the speech was new light out of an old window from the SDLP. Indeed, I met many SDLP members throughout the North who were very confused by the speech. Many journalists were wondering what was going on at Oxford, because of the convoluted and very confusing speech that made no defence of the d’Hondt mechanism or the aspect of power sharing that they had all signed up to under the terms of the Good Friday Agreement.

I absolutely refute what the deputy First Minister has said. To correct the record, my Oxford speech robustly defended d’Hondt and exposed and criticised Sinn Féin’s sell-out of d’Hondt on several occasions, including in respect of the justice Ministry. As regards looking 10 years ahead, and whether I envisaged anything about a possible movement away from d’Hondt; I said no. I said that, hopefully, if we had a robust bill of rights, parties in the Chamber would not have to put the same reliance on the cross-community voting mechanism as they do at the moment. I never said that the mechanism would need to be removed or reduced, but that it would not interfere with decision-making to the degree to which it does at the minute. However, I defended absolutely the democratic inclusion by mandate. Having been quite central to the negotiations and having it put it into the agreement, I am absolutely adamant that that is where it stays.

Well, you obviously did not convince David Simpson and many other members of your own party in the North who voiced their concern to me about what the speech meant. You certainly did not convince many people who wrote articles in the papers about what the speech meant.

You are talking about an article written by Brian Feeney, who, quite clearly, had not read the speech and went on misreports. He wrote a column that made no reference to the speech that I had made, and went on incorrect reports from the Press Association and on a completely false headline from ‘The Irish News’. I accept that people were relying on the version in ‘The Irish News’ that was fed by Sinn Féin and other distortions. However, in this legislature, we should be talking about truth. I never bear false witness against a neighbour. I hope that the deputy First Minister will stop it.

I ask Members to make their remarks through the Chair.

I rest my case on the fact that, at the time, quite a number of people who read the speech were totally and absolutely confused by the message being delivered. Anyway, all of that is by the by. The fact is —

It was not as confusing as “at all times”.

The fact is that we face a situation in which efforts are being made to ensure that powers are transferred so that we can put in place a Department of justice and a Minister of justice who will start to deliver for people in communities across the North.

The SDLP’s contribution to the debate is particularly negative. They are making a serious mistake and a serious misjudgement about nationalists and republicans on the issue. If the SDLP’s amendments were passed in the House today, the prospect of the transfer of policing and justice powers would be put off for a very long time. Therefore, I urge Members to reject amendment Nos 1, 2, 3 and 4 and to support clause 2 standing part of the Bill.

The debate on the first group of amendments has been long, and many of the issues have been examined exhaustively. I do not intend to respond to each contribution in specific detail, but I will deal with the main issues that have arisen.

First, the SDLP is committed fully to the devolution of justice and policing powers. We wanted to see those powers transferred to Northern Ireland and to the Assembly long before now, and any suggestion to the contrary is absolutely untrue. Indeed, as far back as the time of the first Executive, indications were made and discussions took place on the matter. During the negotiations at Leeds Castle, the SDLP again brought forward a proposal to have a proto-Ministry of justice. Although that Ministry would have been a shell, it could nonetheless have been a useful departure for all of us in the Assembly.

Our amendments are timely, and they provide certainty in a process that is untimely and uncertain. Therefore, it is important that the amendments are seen in that context. Through the amendments, we seek to address certain problems with the Bill. In particular, we address the exclusion of the use of the d’Hondt mechanism for the appointment of the justice Minister. However, I will come back to that in due course.

We also seek to address the sunset clause, about which there has been a great deal of talk. We believe that our amendments provide a method of addressing the difficulties that that clause raises. It is important that all Members listen very carefully to what we have to say about that, because we are attempting to bring certainty to a process in which there is uncertainty.

There has been a lot of discussion about what will happen in May 2012. If anybody believes that the debate has created certainty about what will happen in 2012, they have got it wrong entirely. Our amendments deal with timing, and I believe that they are correct in their approach. My party is earnest about and dedicated to resolving this very difficult situation.

Members from Sinn Féin, the DUP, and, indeed, alas, from the Alliance Party, have attempted to misrepresent our views as negative. They have also attempted to claim that we have been obstructive and have put hurdles in the way of the devolution of policing and justice powers. We have not. We believe that our amendments are aimed at expediting the process and that that will benefit all in our society.

The issue of justice and policing is one of great importance to all in our society. Not a day passes in which some issue relating to justice and policing does not arise. There is an urgency to resolve the matter, and our amendments are a way of doing that.

The First Minister and deputy First Minister’s decision-making role in bringing about devolution must be considered, and that is dealt with in the second group of amendments. I will not address that now.

The SDLP is not fixated on d’Hondt; it is concerned with preserving the principle of inclusive democracy. D’Hondt is not a principle: Dr Farry said that it was not a principle, and I agree with him. However, the SDLP believes that the d’Hondt mechanism supports the principle of inclusive democracy. If there is one element of the Good Friday Agreement that is necessary and crucially important, it is the inclusivity of democracy and involving all the significant elements of our society in the body politic and in the Executive. Therefore, it is wrong to say that the SDLP has some sort of hang-up over d’Hondt.

We are concerned with maintaining inclusivity in the democratic system in the Assembly and the Executive, and that is what our amendments are about. Under the Good Friday Agreement, d’Hondt is the system that has been chosen to bring about inclusive democracy. That was approved and mandated by the people of Ireland, North and South. It cannot be casually thrown away, eroded or damaged.

I know that elements in the DUP want to roll back that aspect of the agreement. It is dangerous for any party in the Assembly, particularly Sinn Féin, to allow itself to facilitate the process of rolling back a very important principle of the Good Friday Agreement. Unfortunately, that has been conceded, although Sinn Féin says that that is only for a temporary period. Nonetheless, the strength of that principle is being eroded if d’Hondt is undermined, weakened or, in this instance, removed from the decision-making process of appointing a Minister.

The d’Hondt system is important because it establishes a pecking order for the appointment of Ministers. It is a proportionate system, but it also provides a pecking order so that one party cannot take all of what are regarded as the best and most important portfolios, leaving the rest to other parties. It is carefully calibrated to allow proper representation throughout the Executive, and it is very important that that be preserved.

The system also prevents vetoes. The whole point about a cross-community election is that it provides a veto so that a person can be prevented from becoming a Minister, in this instance a Minister of justice. That is no accident; the system is deliberately designed to provide a veto. The DUP privately and, on occasions, publicly boasted that it could exclude a Sinn Féin Member from becoming a Minister for justice for ever. It did so because it had a veto, and that veto was provided under cross-community election.

That creates a great injustice, which is wrong. Not only would that exclude Sinn Féin members from becoming justice Minister, it would also exclude a nationalist from becoming justice Minister. On 9 July, the First Minister said that he would veto the appointment of an SDLP Minister. People say that my party makes things up, is alarmist and encourages fear. The fact is that the First Minister said in Downing Street that he would exclude an SDLP justice Minister.

Is it right and proper that the First Minister should have that power to exclude SDLP members from becoming justice Minister? That is a fair point for my party to make: it does not constitute some sort of entitlement claim. Is it right that the First Minister could exercise that veto over the crucial appointment of a justice Minister if the person happens to be an SDLP member?

Of course, Sinn Féin has said that it would support the SDLP in a cross-community vote. That is a hollow representation. That party knows that on 9 July — my birthday, incidentally — the First Minister said that he would veto the appointment of any SDLP nominee to that position.

Surely, that is a flagrant act of discrimination. People in the North of Ireland, particularly those from the nationalist and republican community, have endured a history of discrimination. That community was deprived of all sorts of benefits — access to housing, access to employment and so forth. The history is here in this very House. The Assembly must do all that it can to stop that sort of discrimination from happening in the future.

At present, it is Sinn Féin, rather than the SDLP, which has got it wrong. The deputy First Minister said that the SDLP has got it wrong. He said that my party does not reflect opinion. If the public knew what has been designed for the appointment of a justice Minister — if they were aware that SDLP members, nationalists and Sinn Féin members are not entitled to be justice Minister — how would public opinion react?

In the past couple of years, the debate on policing and justice has raged among the public. The SDLP has actually majored on it. However, that did not do the SDLP much good in the European elections, in which Mr Maginness was the SDLP candidate.

Does the deputy First Minister seriously believe that, if there were a proper debate on the subject, such as the one that is under way in the House at present, and those facts were presented clearly to the people he and I represent — the nationalist and republican community, who are represented by Members on this side of the House — they would tolerate that situation? I do not believe —

Will the Member give way?

No, you have made your point. I put it to you and to Members of the House that the people in nationalist and republican communities would not find that acceptable. That is putting it mildly; they would be outraged.

Does the Member accept that, after St Andrews, Sinn Féin told us that policing and justice would be devolved by May 2008 and scorned us for suggesting that it had conceded a triple lock? Will the Member give an assessment of what the outcome of that has been?

I am grateful to the Member for his contribution. As far as Sinn Féin is concerned, the genesis of the problem was the deal that it made at St Andrews. The party came away from St Andrews saying publicly that the transfer of justice and policing would take place by May 2008. That is how Sinn Féin misrepresented the situation to the public at large. Of course, the DUP had no intention of making that happen. Sinn Féin got itself into difficulties on that issue. Again, that is putting it mildly; Sinn Féin tied itself in knots.

Subsequently, at the Assembly and Executive Review Committee, it became clear, through a letter from the First Minister and deputy First Minister, that the arrangements would be for all time. At that stage, Sinn Féin panicked, and the result of its panic was that a further amendment, or rearrangement, was arrived at. The deputy First Minister may look incredulous, but that is what happened at the Committee.

Will the Member give way?

You have had your say, and there is not much more that you can add to extract yourself —

Will the Member give way?

No, there is not much more that you can do to extract yourself from your personal embarrassment. For all time — [Interruption.]

I remind all Members to speak through the Chair and to keep to the subject of the debate.

If I offended you in any way, Mr Deputy Speaker, I am sorry. I will comply with your direction.

I outlined how Sinn Féin got itself into that difficult situation. Subsequently, the Member for West Belfast Gerry Adams said that the transfer of policing and justice would take place by November 2008 and that the DUP would not delay the process. Which member of Sinn Féin are we to believe? Sinn Féin puts a brave face and plenty of spin on the situation. However, Sinn Féin was outmanoeuvred at every point by the DUP. In that context and in the context of today’s debate, the SDLP’s amendments are clear, certain and timely. They provide a genuine context in which to address the extremely difficult issues.

It is important to raise those issues, because they identify the profound weaknesses that exist in the Bill, despite the fact that it is very short. Members cannot consider the Bill without considering the 2009 Act, which is full of booby traps and potential difficulties, not least the sunset clause and the provisions for reining in a justice Minister.

I invite the Alliance Party to look carefully at the Bill. I agreed again with Dr Farry when he expressed concern — I do not know whether that reflected the view of the whole Alliance Party — that a justice Minister may be removed from the Executive on a political whim. I do not think that I do any disservice to Dr Farry by paraphrasing those remarks. He is right; why should a justice Minister be different from any other Minister in the Executive? If he or she is a full member of the Executive, why should he or she be treated differently? Those are rhetorical questions, because we know the answer.

The deputy First Minister can smile if he wants to, but he has dug a hole for himself. Anyone who is in a hole is advised to stop digging, and these amendments will help him to stop digging. I think that it was Sir Reg Empey who said that the restraints and constraints in the Bill will mean that the justice Minister will be a puppet. That flows from the fact that there is to be an election on a cross-community basis, which means that a Minister can be removed by a cross-community vote.

Given that the method for removing a Minister has been put place in Westminster legislation before the Assembly has made a decision on how a Minister should be appointed, does the Member accept that it is factually incorrect to say that one flows as a consequence of the other?

This is twin legislation. Although, the 2009 Act was passed in a different institution, the two are interconnected, and one cannot distinguish between them. The Bill could not be implemented if the 2009 Act was not in place, and that is the reality.

Will the Member give way?

No, I will not, because the Member has made her point. One of her Westminster colleagues Alistair Carmichael actually raised that issue on the Floor of that House. He expressed his deepest concern — [Interruption.]

He is a Liberal Democrat, as opposed to a member of the Conservative or Labour parties, and he is associated with the Alliance Party through its sister relationship. I do not have his quote to hand, but I know that he expressed deep concern about that aspect of the 2009 Act. That speaks volumes, and, when the Alliance Party starts to wriggle on the issue, perhaps it should discuss with Alistair Carmichael MP his concerns and the dangers that he saw in that aspect of the legislation. All of this flows together, all of it is interconnected, and it presents a serious danger.

During the debate on the sunset clause, I listened very carefully to the deputy First Minister and other Members saying that there is nothing to worry about and that it will be all right on the night. Bar a miracle, it will not be all right on the night. If the legislation goes through, as is, the Department of justice will be dissolved.

Will the Member give way?

No. I want to develop that point. I will give way later.

That is a very serious problem; it is not just some sort of legal abstraction. The amendments tabled by the SDLP go some way, at least, towards addressing that. New clause 2A(b) asks the First Minister and deputy First Minister to make a report orally and in writing to the Assembly. It also asks the First and deputy First Ministers to explain:

“the provisions of paragraph 8 of Schedule 1 to the 2009 Act and, in particular, in the event that the Department of Justice is dissolved on 1 May 2012, the consequences of such dissolution for the exercise of the functions that the Department of Justice is to exercise, including such functions as may be conferred on the Department of Justice relating to—

(i) the imprisonment of offenders;

(ii) the compensation of victims of crime;

(iii) the provision of services in relation to forensic science;

(iv) the provision of services in relation to youth justice.”

The First Minister and deputy First Minister are part and parcel of the justice Department; they would suffer the consequences of that dissolution. That is not frippery or legal abstraction; it is important, and it needs to be addressed by the First Minister and deputy First Minister. They have brought about the situation, so it is their responsibility to give an explanation.

I turn to the cross-community election and the use of the d’Hondt mechanism for the appointment of a justice Minister. New clause 2A would restore the d’Hondt mechanism. However, that would not necessarily exclude the election of a Minister on a cross-community basis.

Careful examination of the amendments will demonstrate that Members who said that we are being negative and destructive and that we are creating hurdles and obstacles — all of which are accusations that have been thrown at the SDLP throughout the debate — are wrong. I ask Members to at least do us the favour of revisiting the amendments so that they can see that they will not provide the alleged outcomes.

The Member spoke about accusations that were made about his party being negative. However, the only person that I heard being negative was the Member. He said that there was no chance of any agreement on the appointment of a justice Minister in the long term between now and 1 May 2012. If he believes that there is no chance of a long-term agreement by 2012, how on earth does he expect the Assembly to agree a long-term position in the two weeks before the Bill receives its Royal Assent? That would be the effect of the amendments that he asked us to revisit.

The Member is ignoring the whole problem of dissolution. I am positive. We have made significant progress on a number of issues in the Assembly, but there are still many outstanding ones. Neither the SDLP nor I have ever lost our optimism during the process and before its inception. We were positive throughout the 1970s, during the bleakest time in our history. We were positive throughout the 1980s, during the hunger strikes. We created a situation that made the Anglo-Irish Agreement possible in 1985. From that, we moved on to the negotiations, the ceasefires and the Good Friday Agreement.

Order. The Member is straying from the subject being discussed.

Our colleague across the way Mr Hamilton is representing my party and me as being negative. I am optimistic that we can do things together. However, to use Alan McFarland’s term, a “back room deal” is not the way to move forward. We have to move together and arrive at solutions on the pressing issue of the devolution of policing and justice. We can achieve that.

If a sunset clause is built in — I wish Mr Hamilton would listen to this point — that creates more uncertainty and instability in the process. A sunset clause does not create certainty or stability. Where is the stability or the certainty if a sunset clause is built in? If a sunset clause is included, stability and certainty are absent, which does a grave disservice to the issue that we collectively seek to resolve.

A number of issues were raised that I hope to address. I answered most of the issues that were raised by the deputy First Minister, who has either misunder­stood or wilfully ignored the value of the amendments. This is a way to move forward, not a way to retard progress.

I am trying to discern from the Member’s commentary how serious the SDLP is about the need for the transfer of policing and justice powers. I ask the Member to reflect on a debate at which he and I shared a platform with the Law Society not long ago. I clearly recall that we had a fair dispute at the time. It is important to try to establish the truth about the matter.

During the Member’s contribution to that debate, he referred to what he called the impasse between Sinn Féin and the DUP over the matter at that time. Mr Maginness said that he could not understand the fuss about the transfer of policing and justice powers because, on one hand, the Policing Board was fully in charge of policing and, on the other hand, there are so many independent agencies in the criminal justice system. He asked what the fuss was about, given that a Minister would be akin to no more than a caretaker.

His view during that discussion caused risible concern among people who attended that meeting, nearly all of whom were lawyers. On one hand, Mr Maginness said that the transfer was a vital issue, whereas, on the other hand, he asked what the problem was because the Minister will be merely a caretaker. Will the Member convey his party’s position to the House? That has not happened yet. The SDLP says that it is committed to the transfer of policing and justice powers. We are saying that it has done absolutely nothing to bring that about. In fact, the SDLP has contributed only negativity. How do the Member’s comments at the debate with the Law Society square with his assertion that the SDLP is serious about the issue?

That is an interesting point about the Law Society. When evaluating the justice Department and the justice Minister, it is fair to say — this is the point that I made to the Law Society — that the scope of the Minister’s power will be limited by the fact that there are so many agencies and by the existence of the Policing Board, the independent judiciary and the independent judicial appointments commission. Therefore, the Minister’s scope and powers are limited and primarily concentrate on two main issues: the Department’s budget and criminal justice legislation. He or she will have an important supervisory role over the remaining issues. I never used the word “caretaker”; I would never use that word. The Member is wrong.

You did.

You can say what you want, but you are wrong. I said — I have said it publicly on other occasions — that people have an exaggerated fear of the justice Department and the justice Minister and an exaggerated sense of that Minister’s power, which will be constrained by the factors that I outlined, not only to the Law Society but to other organisations. I do not retract one jot of my comments on that matter.

The deputy First Minister said that our proposals had been fast-track proposals. The Good Friday Agreement from 1998 contains a commitment to the transfer of policing and justice. There have been innumerable discussions at various conferences on policing and justice, not only at Leeds Castle. Since the restoration of the Assembly there have been innumerable discussions about the transfer of powers from Westminster, and so it continues.

There comes a point when we can say that we have exhausted discussions and that we need to come to a decision on policing and justice. We are focusing on the real need to achieve an end result. I do not know how anyone in the House can disagree with that.

The Member ignores the reality that the institutions that we are a part of are power-sharing institutions that work only in the context of people having the ability to rise above all the divisions of the past and recognise the importance of working together. It is legitimate to talk about the fact that the institutions have been restored for the past two years. We are now coming to make-your-mind-up time on the transfer of policing and justice powers. That is accepted by everyone, against the backdrop of a £1 billion settlement that the First Minister and I recently negotiated with the British Prime Minister. It is incumbent on everyone to recognise that we are fast approaching the time when we must make up our minds.

The Member fails to understand the reality, which is that, if the SDLP’s approach were to prevail — although it has no support, other than that from the Ulster Unionist Party — it would mean that the transfer of policing and justice powers would fail miserably, which would set back the effort to devolve policing and justice for quite a number of years.

I listened carefully to the deputy First Minister. I am not sure whether he said that devolution would happen by Christmas of this year, but his party’s spokespersons have certainly indicated that. That is what Sinn Féin was looking for. It is a bit rich of Sinn Féin to criticise the SDLP for trying to expedite the transfer of policing and justice. By the way, it is important that the Ulster Unionists are supporting at least some of our amendments.

Only one bit.

Well, only one bit — [Interruption.]

Order. Members must make their remarks through the Chair. [Interruption.]

Order. Members must make their remarks through the Chair and from a standing position.

It is important that my party acknowledges the support of the Ulster Unionists for some of our amendments. That is important because that party shares a common view that serious difficulties exist. It is not right for the House to ignore those difficulties. The deputy First Minister’s remarks implicitly demeaned the fact that the Ulster Unionists were supporting the SDLP. That is not something to demean; it is something to be proud of. At least we have a common position. We do not, perhaps, have a common position on timing, but we have a common position on the problems that are extant in the Bill.

From time to time, when the First Minister takes the mood, he says that he extends a warm embrace to the SDLP and even to the Ulster Unionists and says that they should be involved in this process and that it is a collective enterprise. It is very hard to take that sort of nonsense.

For clarification, there are some embraces that the Ulster Unionist Party can do without.

I accept that point. Nonetheless, it would be good if there were more embracing in the House. I think that the points that we have made in relation —

Please, no.

Naomi Long is rejecting my advances in that regard. During the Assembly roadshows, I was asked who my dancing partner would be, and I suggested Naomi Long. Obviously, she would reject me as a dancing partner.

I will return to my point: if the DUP and Sinn Féin seriously regard this as a collective exercise, they should make it so. They should not exclude the SDLP or the Ulster Unionists. We do not see that level of “embrace”, in inverted commas. We do not see that level of engagement by the DUP or Sinn Féin.

An internal problem that will arise from the Bill is the appointment of a Chairperson and Deputy Chairperson of a justice Committee; similar issues will arise in relation to that. I believe that this is pertinent and relevant to the problems that are being created. Once you start to chip away at or unwrap something, it will unravel more and more. That is the problem presented to the House today.

Before I put the Question on amendment No 1, I remind Members that amendment No 1 is a paving amendment for amendment Nos 2, 3 and 4.

Question put, That amendment No 1 be made.

The Assembly divided: Ayes 13; Noes 66.

AYES

Mr Attwood, Mr D Bradley, Mrs M Bradley, Mr P J Bradley, Mr Burns, Mr Durkan, Mr Gallagher, Mrs Hanna, Mr A Maginness, Dr McDonnell, Mr McGlone, Mr O’Loan, Mr P Ramsey.

Tellers for the Ayes: Mr P J Bradley and Mr Burns.

NOES

Mr Adams, Ms Anderson, Mr Armstrong, Mr Beggs, Mr Boylan, Mr Brady, Mr Bresland, Mr Brolly, Lord Browne, Mr Buchanan, Mr Butler, Mr T Clarke, Mr W Clarke, Mr Cobain, Mr Craig, Mr Cree, Mr Easton, Mr Elliott, Dr Farry, Mr Ford, Mrs Foster, Mr Gardiner, Ms Gildernew, Mr Hamilton, Mr Hilditch, Mr Irwin, Mr G Kelly, Mr Kennedy, Mr Kinahan, Ms Lo, Mrs Long, Mr Lunn, Mr A Maskey, Mr McCallister, Mr F McCann, Ms J McCann, Mr McCartney, Mr McElduff, Mr McFarland, Mrs McGill, Mr M McGuinness, Miss McIlveen, Mr McKay, Mr McLaughlin, Lord Morrow, Mr Moutray, Mr Murphy, Mr Neeson, Mr Newton, Ms Ní Chuilín, Mr O’Dowd, Mrs O’Neill, Mr Paisley Jnr, Mr Poots, Ms S Ramsey, Mr G Robinson, Mr K Robinson, Mr P Robinson, Mr Ross, Ms Ruane, Mr Savage, Mr Shannon, Mr Spratt, Mr Storey, Mr Weir, Mr B Wilson.

Tellers for the Noes: Ms S Ramsey and Mr Spratt.

Question accordingly negatived.

Question put, That clause 1 stand part of the Bill.

I think that we need to ask the Question again.

Question put, That clause 1 stand part of the Bill.

Order, please. If Members resume their seats, we will try to get some clarity. There may be some confusion. We have now moved to clause 1, and the vote at this stage will be on clause 1. If Members are clear, I will re-call the vote.

Question, That clause 1 stand part of the Bill, put and agreed to.

Clause 1 ordered to stand part of the Bill.