New Clause 4

Justice and Security (Northern Ireland) Bill – in a Public Bill Committee at 4:15 pm on 18th January 2007.

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Repeal of conditions for the devolution of justice

‘Section 16 of the Northern Ireland (Miscellaneous Provisions) Act 2006 is hereby repealed.’.—[Mark Durkan.]

Brought up, and read the First time.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

I beg to move, That the clause be read a Second time.

New clause 4 purports to address a change made by earlier legislation on the devolution of justice and policing in Northern Ireland. The Northern Ireland Act 1998 provided that the devolution of justice required cross-community consent in the Assembly. On current party strengths, the votes of the Ulster Unionist party, the SDLP and Sinn Fein together would be sufficient to achieve that consent. That clear provision in the Northern Ireland Act was amended by the Northern Ireland (Miscellaneous Provisions) Act 2006, which provided instead that the devolution of justice could not occur unless the First Minister and Deputy First Minister moved a motion approved by the higher threshold of parallel consent. The key difference, therefore, is that on current party strengths the consent of the Democratic Unionist party is needed. Also on current party strengths, a DUP Member would hold the office of First Minister, which would give it another veto.

Hon. Members might recall that at the time when the Northern Ireland (Miscellaneous Provisions) Act was passed, we warned that the DUP might be inclined to abuse those vetoes, and so it has proved with the stand-off between Sinn Fein and the DUP. Sinn Fein will make a clear move on policing only if the DUP agrees a date for the devolution of justice and policing, but the latter is content to hold the triple-lock veto in its pocket; so the DUP has essentially given Sinn Fein a veto on restoration, and Sinn Fein has given the DUP a veto on policing. Which will blink next? The Prime Minister cannot wink for both of them.

I believe that the Secretary of State recognises some of the difficulties that he created—to be fair to him, he did not start it—when he legislated for the triple lock in  the 2006 Act. In a paper that he released over the Christmas recess he indicated that he wants to put a time limit on the triple lock so that it is not indefinite. At a later stage, we will make our own proposals to address that issue. However, to revert to the position of allowing devolution to be triggered by cross-community consent in the Assembly and not allowing things to be dependent entirely on a DUP veto, which they have been abusing, would be one step forward. That is the intended effect of the new clause. It would restore the position provided for by this House in the 1998 Act.

Photo of Sammy Wilson Sammy Wilson Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Education)

Some of us have listened to the rhetoric of the SDLP for a very long time about the need for confidence, cross-community support and inclusiveness—arguments that it has used time and time again to ensure that Sinn Fein is included in every decision in Northern Ireland. The explanation given by the hon. Member for Foyle for the new clause was staggering. He has shown clearly that inclusiveness as defined by him and his party must include only the people with whom he agrees or is associated, but certainly not those opposed to his point of view. That, of course, is what the new clause is all about.

The reason why parallel consent was required in the 2006 Act was simple: the devolution of policing and justice is of such importance that it can only take place when there is absolute confidence within the community that the right conditions have been met. That means that the views of whichever parties happen to represent the majority of unionists and nationalists cannot be ignored. To talk of inclusiveness, without recognising that the support of the majority grouping on either side is required, is plain daft.

The hon. Member for Foyle has hit on the problem that is caused. Sufficient confidence needs to be generated on both sides of the community. It might well be that nationalists are happy: indeed the SDLP indicated in the Committee on the Preparation for Government last summer that it wished to see the devolution of policing and justice on the day of devolution. It is one thing to say that nationalists are happy about the devolution of policing and justice and that it should therefore happen, but that ignores the confidence that is required on the Unionist side.

Parallel consent was an attempt to ensure that the devolution of policing and justice would and could only happen in circumstances in which it could work. That is important. The devolution of policing and justice in the absence of parallel consent—a move away from parallel consent—would create difficulties in a newly formed Assembly, and difficulties for confidence in devolved policing and justice.

The DUP wishes to see the devolution of policing and justice in Northern Ireland, just as it wishes to see the devolution of all other functions. That has been put on the record of the House on a number of occasions and on the record of the discussions at Stormont, at which some SDLP Members were present. The hon. Member for Foyle may have been present at some of the meetings in which I was involved. However, devolution can only be done in circumstances where there is confidence. We hope that that will happen  sooner rather than later. Generating confidence is not solely within the remit of Unionists generally or the DUP in particular. The lack of confidence is a result of the attitude of Sinn Fein, which will be one of the major parties to deal with policing in the Northern Ireland Assembly. The job of working towards a position that generates confidence is for Sinn Fein.

This form of words on devolution was used in the comprehensive agreement, in discussions in the summer at Stormont and by the leader of the DUP in the House. We wish devolution to happen as soon as is possible, but it cannot happen unless there is confidence on both sides of the community that it can work and unless those who will be involved in policing and justice matters are genuinely supportive of the police. For that reason, parallel consent is important. It is the one way of ensuring that the decision is inclusive and cross-community, and that it will work in the long term.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Northern Ireland Office 4:30 pm, 18th January 2007

My hon. Friend the Member for Foyle has raised a matter that clearly requires urgent consideration, as we move gradually towards full support for policing, the rule of law and devolved government. I warmly welcome the remarks of the hon. Member for East Antrim, who said this afternoon—not for the first time—that his party agrees with and wants the devolution of justice and policing. Of course, as I set out in the St. Andrews agreement, the Government believe that if we have full support for the rule of law, policing and the courts, and if we get the election and devolved government, we can devolve policing and justice by May 2008. That is possible so long as all parties work in good faith towards that end.

My hon. Friend invites the Committee to overturn Parliament’s decision on the provisions for the devolution of policing and justice. Of course I shall argue against that and will encourage the Committee not to accept his arguments. It has always been the Government’s position that policing and justice can be devolved only on a sustainable basis with broad, cross-community support. Consistent with that position, it is our view that the support of a majority of both sectors of the community in Northern Ireland is essential if the devolution of policing and justice is to succeed. That is why section 16 of the Northern Ireland (Miscellaneous Provisions) Act 2006 makes it clear that the Secretary of State cannot introduce an order to devolve policing and justice unless both the following conditions are met: the motion asking that he do so is tabled by the First Minister and the Deputy First Minister acting jointly and that motion receives support in the Assembly from a majority of designated nationalists and a majority of designated unionists—the so-called 50:50:50 method.

The hon. Member for East Antrim was right. Because the issue is controversial—it goes to the heart of confidence in policing and sustainable democratic, peaceful conditions in Northern Ireland—it is right that a higher threshold be set in relation to it than is, perhaps, the case for the devolution of other matters. We make no apology for that. It is clear; it is in the legislation; and most importantly, it can be done if the parties act in good faith and work together to ensure that it can happen.

Let me make one final point, which might help the Committee. The transitional Assembly’s programme for government committee sub-group on policing and justice, which I had the pleasure of engaging with a few days ago, is considering various departmental models to support policing and justice once they have been devolved. As part of that, it is considering a paper that was put to it in December by my right hon. Friendthe Secretary of State, which sets out a further departmental model that might be capable of commanding support across the parties. The sub-group has not yet come forward with any conclusions. It might do so in the near future, and if it does, Ministers will need to give urgent and careful consideration to what action the Government may need to take in light of those findings, conclusions and recommendations. I draw that to the Committee’s attention as a matter of courtesy, because it might be necessary to return to those issues on Report and to debate matters that have not arisen in Committee.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

The hon. Member for East Antrim suggested that the SDLP is somehow parting from the principle of inclusiveness—it is not—or from the principle of cross-community support. It is not. We seek to return to the provisions of the 1998 Act, which legislated for the Good Friday agreement and are based on cross-community support. That is the basis on which we say that devolution should happen. That is what the 1998 Act provided for and the Patten report envisaged, and it is what we are trying to achieve. Instead, however, he is trying to say that the only test of cross-community support should be the parallel consent or the 50:50:50 method that the Minister mentioned.

Let us be clear: the hon. Member for East Antrim and his party did not like parallel consent when it came to electing the First and Deputy First Ministers. They did not want a test of cross-community support then. No, there had to be no vote at all—just one party nominating, with exclusive rights of nomination, and the other party doing the same. Under the 1998 Act, the First and Deputy First Ministers had to be proposed and accepted by parallel consent, and that is the only instance under the agreement in which it has happened. One other narrow provision requires parallel consent, but it has thankfully never had to be used.

The DUP did away with parallel consent to elect the First and Deputy First Ministers, and Sinn Fein went along with the DUP. In everything else that is subject and open to cross-community support, a 60 per cent. Assembly majority would suffice, provided that at least 40 per cent. of nationalists and Unionists were part of that majority. The DUP and Sinn Fein have moved away from the wider and more flexible yardstick of cross-community support to parallel consent and 50:50:50, because that gives each party a veto, which they can abuse tactically to hold the rest of us hostage and to hold Government to ransom for all sorts of concessions, some of which have nothing to do with the issue that they are vetoing. The DUP might be comfortable using the parallel consent veto, but it should be remembered that it is going into the hands of others as well. We are not departing from cross-community support; we are trying to return to it.

I welcome the remarks of the hon. Member for East Antrim on his willingness to see the devolution of justice. He strikes a different tone from many of his colleagues who said, particularly during the passage of the Northern Ireland (Miscellaneous Provisions) Act 2006, that they did not envisage that the devolution of justice and policing would happen in their lifetime, competing to say how many lifetimes it would take. I made the observation elsewhere that we have known for many years that there is a strong Free Presbyterian presence in the DUP, but it was news to us that there were so many Buddhists. It was going to take so many lifetimes that they would have to come back to stop the devolution of justice and policing.

I welcome the fact that the hon. Gentleman takes a different tone. There is a bit more realism about the devolution of justice and policing, and the Secretary of State has helped by pointing out that considerable devolution has already taken place. The establishment of the PSNI has devolved to the Policing Board and the Chief Constable, separately or between them, powers that used to lie with the NIO and the Secretary of State.

We are caught in a debate now because Sinn Fein has exaggerated and distorted devolution issues for its own purposes, and it has served the DUP to counter-exaggerate them, which is why we heard about so many lifetimes. I am glad to see a bit more realism and perspective. That being so, why do we need to retain the vetoes in this way?

The Minister has told us that Parliament cannot be asked to reverse what it provided for in the Northern Ireland (Miscellaneous Provisions) Act 2006. In the same remarks, he told us that a sub-committee ofthe programme for government committee in the transitional Assembly is considering the Secretary of State’s paper of late December, but that paper says that, if a vote does not take place under the 2006 Act to devolve and appoint a Minister by May 2008, the Government will take all necessary steps to make that happen, including appointing a Minister for justice to work in a devolved capacity. That completely contradicts what he said—that it could never be done and that cross-community support was absolutely necessary. Contradictions and limitations are emerging in the Government’s position.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Northern Ireland Office 4:45 pm, 18th January 2007

To clarify my remarks, I was simply pointing out that my hon. Friend was inviting the Committee to overturn the previous settled view of Parliament. Obviously, that is possible, but I was making it clear that he is encouraging us to subvert a decision previously taken by Parliament. That is just a matter of fact.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

When we look at the Minister’s remarks we will see that he said a little more than that in respect of his emphasis when echoing the hon. Member for East Antrim on the prerequisite of having cross-community support as measured by parallel consent before anything could happen. The Secretary of State’s paper shows that he now recognises that a difficulty has been caused by creating an open-ended veto in the form of the triple lock.

It is hard to see how anyone will rely on the certainty of a date such as May 2008 if one party can postpone it indefinitely just by using the existing legislative provision; it needs to be qualified, checked or overridden in some other way. It seems clear from the paper that that is what the Secretary of State is minded to do. It would not surprise me if, later on in consideration of either the Bill or subsequent legislation, we found ourselves doing precisely that. It would not be the first time that the Government had produced a legislative multi-point turn on the same issue, taking first one direction and then another. That is what will happen.

I am not asking members of the Committee to subvert the Northern Ireland (Miscellaneous Provisions) Act 2006; I am asking them to revert to the sensible provisions, under the Good Friday agreement and the 1998 Act, for cross-community support to trigger the devolution of justice and policing. Those provisions were agreed on a multi-party basis, not because they suited the demands of one party or another.

Question put, That the clause be read a Second time:—

The Committee divided: Ayes 1, Noes 15.

Division number 14 Nimrod Review — Statement — New Clause 4

Aye: 1 MP

No: 15 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Question proposed, That the Chairman do report the Bill to the House.

Photo of Paul Goggins Paul Goggins Parliamentary Under-Secretary, Northern Ireland Office

On a point of order, Sir Nicholas. I am pleased to rise to express my thanks to all those who have been involved in our deliberations. Three things have been apparent to me throughout. First, we have had ample time to carry out our discussions and to deal with challenging questions, as is evident from the stage that we have reached. I am sure that we all have welcomed having enough time and not having to deal with other pressures that force decisions in an untimely way.

Secondly, all members of the Committee have shown good humour and courtesy in our discussion of difficult and important issues. It is always good when the House and its Members operate in that way.

Thirdly, I note the sheer hard work that many hon. Members on both sides of the Committee undertook to prepare for these sittings and for making their arguments, and I include my hon. Friends and others who may not always have participated in our debates, but who were always there when it counted.

I thank my hon. Friend the Under-Secretary of State for Constitutional Affairs, who led on several issues. I am grateful for that, and am also grateful to the Whip and his colleagues, who helped us to stay in tune.

I say to you, Sir Nicholas, and to Mrs. Anderson that we very much appreciate the way that you have chaired our proceedings. Without doubt, you helped to keep the matter in hand clear, and you sometimes reminded us that we were making an intervention, not a speech.

I thank among the hard workers all my officials,who worked diligently in Committee, but also in preparation for it. Much work lies ahead on some promises that I made to reconsider the wording of various parts of the Bill. The Committee is a point of scrutiny. It is important that we bear in mind all the arguments that have been made, and we will do that.

Finally, I thank the Clerk and Hansard for their untiring and unstinting efforts to keep us well advised and to record our proceedings. Again, thanks to you, Sir Nicholas, for presiding over the Committee.

Photo of Laurence Robertson Laurence Robertson Shadow Minister (Northern Ireland)

Further to that point of order,Sir Nicholas. I join the Minister in thanking you and Mrs. Anderson for giving up so much time to chair the Committee, and for the competent and occasionally humorous way in which you did it.

I thank my hon. Friends, who have been with me most of the time. As the Minister said, my hon. Friend the Member for North-East Milton Keynes, who, unfortunately, is not with us today, and my hon. Friends the Members for Peterborough and for Wellingborough made several telling interventions.

I thank the Minister for his approach to the Bill. He said at the outset that he would listen and think about the issues. He has quite a bit of work to do before the Bill becomes law, as he kindly said that he would reconsider several matters.

On a wider basis, I thank the Northern Ireland Office for its approach to legislation. It offers briefings to Opposition Members and facilities when we travel to the Province. That is very much appreciated. Such actions help to avoid unnecessary party political squabbles and enhance the quality of the debates. I thank the Minister’s officials, the Clerk and Hansard for their help as well.

I wish the Bill well. We highlighted several issues and concerns. They may sometimes appear to be small, but they can have a disproportionately bad effect, so we have been right to raise them. I have very much enjoyed the Committee, and I look forward to the next stage of consideration.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

Further to that point of order,Sir Nicholas. I congratulate the Minister, who has been annoyingly misguided from time to time—that is, when he did not take on my point of view—but nevertheless proved himself a lovely fellow. He has a beguiling manner, which will no doubt put him in good stead as we approach other deadlines.

In parenthesis, may I observe to Northern Ireland colleagues that it is obviously possible to get all the work done well ahead of a deadline and not force the Government to postpone things yet again? There has been a remarkable degree of joint working between parties in the past four sittings.

I make a serious point to the Minister: he can see that when the Government give space for proper debate and the opportunity to amend legislation, things work quite well. That is a further reason to learn from the positive example of the Committee the lesson that if statutory instruments were also amendable, he would probably receive a positive response. The Government have nothing to fear by introducing the ability to amend in that context.

The hon. Member for Tewkesbury said that there is unfinished business, which we shall return to on Report, as right hon. and hon. Members know. I therefore finish by thanking you, Sir Nicholas, for your irrepressible charm as our Chairman. You make democracy a delight, and it has been a real pleasure to serve under you these past four sittings.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

Further to that point of order,Sir Nicholas. I pick up where the hon. Gentleman left off, by thanking you—not only for your charm, but for your courtesy and special consideration of my position. Unlike the other hon. Members who have spoken, I find it hard to thank everybody for being here for the whole time, when I was not. However, I hope that that is fully understood and that, as we finish today, hon. Members appreciate that absence all the more.

I thank all the Committee staff who have supported us in our consideration. I thank the Minister for the degree to which he listened and responded. He perhaps did not heed or accept, but at least he listened and responded in a clear and respectful manner.

The hon. Member for Tewkesbury touched on the fact that there are some difficult issues in the Bill, and the Minister said that he would consider some matters further. Other matters will have to be considered further, although that will be based not only on the issues that have been aired in Committee. However, that is for a later stage, so I thank you again,Sir Nicholas, and your co-Chair, Mrs. Anderson, under whom I did not serve due to other circumstances.

Photo of Sylvia Hermon Sylvia Hermon UUP, North Down

Further to that point of order,Sir Nicholas. I regard you as being in a league of your own when it comes to chairing Committees. I have had the great fortune of sitting on many Committees that you have chaired, many of which were controversial and sensitive, given the suffering that people have gone through in Northern Ireland. You are always exceedingly gracious, good tempered and patient, in allowing lengthy interventions, yet making all members of the Committee, including the Minister, feel that they have had ample time to air their views. I pay you the warmest tribute.

I am sure that Mrs. Anderson was looking forward to seeing all the Committee members back next week, so she will be enormously disappointed that we shall not be sitting then. She was entirely charming in chairing the Committee this morning, so I extend thanks to her, too.

I also thank—this is not a hierarchy—the Doorkeepers, who had to open, close and lock the door, aided and abetted by the hon. Member for Foyle, who made use of his time when he was here. I also  thank the Hansard staff, who kindly returned by post this morning my only surviving copy of the Belfast agreement, which is a rare collector’s item.

Photo of Sylvia Hermon Sylvia Hermon UUP, North Down

It is never to be extinct. That brings me to the point in play—the teasing of the hon. Gentleman, who was very tolerant of that teasing, which came not only from me, but from hon. Members throughout the Committee.

I also thank the officials. I have been critical of the drafting, but in a previous incarnation I taught in the law faculty at Queen’s university and did some proof-reading. It is the main aim of all members of the Committee and all officials to get it right—for Her Majesty’s forces, the judges, the judiciary, the ombudsmen and Police Service of Northern Ireland officers, who have to apply the law that we introduce in the House.

Last but certainly not least, I thank the Minister. As always, it has been a delight to tease, cajole and persuade him, and to try to entice him into changing his mind on various matters. It is exceedingly difficult to fall out with him. He is an exceedingly good Minister and it has been delightful to see him in Committee. In fact, this has been one of the nicest Committees of which I have had the good fortune to be a member.

The Under-Secretary of State for Constitutional Affairs responded at a very opportune time this afternoon on the matter of bail conditions—I have to say that until then I had never understood them. The demise of resident magistrates could not possibly have been handled any more elegantly and fairly. So, goodbye to the resident magistrates and thank you to the Ministers. The Committee has been wonderful, and I am rather sorry that we are not continuing next week. I thank all Members and the Chairman.

Photo of Sammy Wilson Sammy Wilson Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Education) 5:00 pm, 18th January 2007

Further to that point of order,Sir Nicholas. I am going to be dead brief, because I want to catch the plane home this evening, and other Members want to get away too. My absent colleague felt that he could leave things in my hands, though I do not know whether his confidence was well placed. On his behalf and my own, I thank all the staff and everyone who has served the Committee over the past couple of days.

It is easier to thank a Minister when the Bill is one with which one mostly agrees and there is not as much dispute as on previous occasions. Nevertheless, I thank the Minister for how he has handled the queries and questions that have been raised. I still look forward to finding out the answer to my question about the police stopping an airborne aircraft—I hope he gets me a reply to that fairly quickly.

Like the hon. Member for North Down, I have now served on a number of Committees on which you have been the Chairman, Sir Nicholas, and I have always looked forward to your good humour and the way that you help those of us who are still parliamentary apprentices. We still sometimes fall foul of the rules, but I have always found you very tolerant, and I thank you for that.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

I thank Committee members for those generous comments about me and my co-Chairman, Janet Anderson. I congratulate the ministerial team on the constructive and sensitive way that they dealt with important amendments to what is an important Bill for the people of Northern Ireland. I thank those who have ensured that our deliberations have been effectively and properly carried out—the police, the Doorkeepers, Hansard and, in particular, the Clerk of this Public Bill Committee. It was always useful to have him on my left to give me advice and help when necessary. This has been a good Committee.

I make a plea to the Government Whip, the governing party’s business manager. Although we have completed our deliberations well within the terms of the programme motion, business managers should not be led into reducing the time available for debate on important public Bills. We have finished within the available time because the Committee as a whole tackled the Bill constructively and sensibly. Ministers have listened and there has been no procrastination, delay or repetition.

I want to comment in particular on the performance of the hon. Member for Foyle, to whom I always love to listen when he waxes lyrical—as he frequently does. I am also grateful for the humour shown by everyone. The Committee, even if I say it from the Chair, has been an example that I hope will be followed often. I congratulate all Committee members on the role that they have played.

Question put and agreed to.

Bill to be reported, without amendment.

Committee rose at four minutes past Five o’clock.