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

With this it will be convenient to discuss the following:

New clause 2—Powers of the Secretary of State with regard to conditions for devolving policing and justice matters—

‘After section 4 of the Northern Ireland Act, 1998 (c. 47), insert—

“4A (1) If by 1st May 2008 no resolution has been passed by the Assembly of the type referred to in section 4(2A), then, notwithstanding anything in section 4(2) or (2A), the Secretary of State may lay before Parliament the draft of an Order in Council amending Schedule 3 so that devolved policing and justice matters cease to be reserved matters with effect from such date as may be specified in the Order.

(2) If the draft of an Order laid before Parliament under subsection (1) is approved by resolution of each House of Parliament, the Secretary of State shall submit it to Her Majesty in Council and Her Majesty in Council may make the Order.

(3) An Order made under this section—

(a) must confer all functions with regard to devolved policing and justice matters on the Northern Ireland department referred to in section 21(3) of this Act, if established by Act of the Assembly;

(b) must establish a new Northern Ireland department in the charge of the First Minister and Deputy First Minister acting jointly, if not already established by Act of the Assembly;

(c) may make such modifications of enactments as appear to the Secretary of State to be necessary or expedient in consequence of the transfer of devolved policing and justice matters; and

(d) may make such consequential, supplemental or transitional provision as appears to the Secretary of State to be necessary or expedient.

(4) Nothing in this section prejudices the operation of Part III of this Act and the Assembly may amend or revoke an Order made under this section.

(5) In this section “devolved policing and justice matter” has the same meaning as in section 4.”.’.

New clause 4—Primacy in intelligence gathering—

‘(1) The Police Service of Northern Ireland shall retain primacy in matters of intelligence gathering in Northern Ireland.

(2) For the purposes of subsection (1), “primacy in matters of intelligence gathering in Northern Ireland” shall include in particular lead responsibility in Northern Ireland for the—

(a) strategic assessment of intelligence needs;

(b) overall assessment of intelligence gathered;

(c) appropriate dissemination of intelligence gathered;

(d) recruitment, conduct and use of covert human intelligence sources;

(e) interception of communications; and

(f) deployment of directed and intrusive surveillance

in matters connected with the affairs of Northern Ireland.

(3) Sub-section (1) applies whether or not the intelligence concerned relates or may relate to national security.’.

Government amendment No. 28

Government new schedule 1—Northern Ireland department with policing and justice functions.

Right hon. and hon. Members will be aware of the significant and historic progress that has been made over recent weeks in Northern Ireland. First, we had the agreement at St. Andrews. Last week we had the latest Independent Monitoring Commission report, which confirmed the Provisional IRA’s ongoing commitment to an exclusively political path. Last week also saw the unprecedented move by Sinn Fein in favour of support for Northern Ireland’s policing and justice institutions, which I think that all sides will welcome, and which I hope will be built on over the next few weeks and months.

I am most grateful to the Minister for taking such an early intervention. Will he put on the record his condemnation of the outrageous remarks by the Sinn Fein leader, in that it is wholly inappropriate to talk about “putting manners” on the police, while Sinn Fein has embraced policing at long last?

The hon. Lady speaks for herself on these matters. I will put it on record that I very much welcome the fact that last week, for the first time, Sinn Fein, by its ard fheis, supported the Police Service of Northern Ireland. The following day, the Member for Belfast, West (Mr. Adams) indicated that when crimes are committed in communities that have traditionally not supported the police, those communities should now work in co-operation with the police. We need to look at the positives. I accept the hon. Lady’s comments, but let us look at the positives in relation to what has happened over the last two weeks.

I understand the Minister’s sense of relief and delight at the announcement, but it is by their fruits that we shall know them. I hope that he will not allow himself to indulge in any false euphoria merely because certain people who have broken the law innumerable times in the past now say that they might obey it. Let us see that they truly do, and that they truly uphold it.

I recognise the hon. Gentleman’s concerns. From my perspective, the statements and the work undertaken by Sinn Fein in getting to the situation where, a week last Sunday, the ard fheis confirmed support for policing, are a welcome engagement with the criminal justice system and policing. The Under-Secretary of State for Northern Ireland, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins), as the Minister with responsibility for the police, and myself, as the Minister with responsibility for criminal justice, welcome that, as does my right hon. Friend the Secretary of State. Obviously, we need to see progress on that. I am aware that there are political parties that wish to examine how it operates on the ground. But let us not get away from the fact that there has been a significant change. The IMC report last week confirmed and backed up that move by the Provisional IRA.

I join the Minister in welcoming progress when progress is made. However, I am sure that he agrees that there is yet more to do and that it is not appropriate for Mr. Adams to indicate that he supports some functions of policing, yet to hold back on giving support to other elements of those functions. For example, he is indicating that he supports civic policing, but he will not support what he describes as “political policing”, which is the stand against terrorism in Northern Ireland. He must give full support to the police in exercising their functions to oppose the Real IRA, the Continuity IRA and any other terrorism organisation—whether loyalist or republican. He must require people in his constituency and elsewhere to give full support and information to the police so that they can counter attacks.

The hon. Gentleman paints a vision of how policing should operate in a normal society, and I look forward to the day when that happens. I want to see Sinn Fein taking up a role on the Policing Board and becoming involved in local policing on the ground. I hope that the hon. Gentleman recognises that last week’s events were a significant step. New clause 5 is significant too, because it deals with the possible devolution of policing and criminal justice matters to the Assembly in due course.

Does the Minister accept that some of us genuinely believe that Sinn Fein and the IRA have moved forward? Although it is a matter of judgment, does he agree that actions are likely to follow on this occasion? If they do follow, that will give rise to an expectation that Members who sit on the Opposition side of the House should be willing to share power, given that policing was one of the matters on which they set a fundamental condition for Sinn Fein to fulfil.

I agree entirely with the hon. Gentleman that it is important that power sharing should follow as a result of signing up to policing and the test being fulfilled to the satisfaction of the parties. I am encouraged that there has been a widespread debate on policing among members of Sinn Fein. The ard fheis was overwhelmingly in support of policing. The Member for Belfast, West indicated the following day that members of Sinn Fein should co-operate with police on the ground on the very day-to-day issues that the hon. Member for Belfast, East (Mr. Robinson) mentioned. I am confident that that will develop over the next few weeks and months—through the election and up to devolution on 26 March. We should welcome such developments for all concerned.

I put the situation in context at the beginning of my speech because we are at the brink of restoring power-sharing institutions for those very reasons. Now is the time for us to stick to the terms of the St. Andrews agreement. Given that elections have been called for 7 March, and that there is the possibility of the Northern Ireland Assembly being restored on 26 March, there is no room for further delay or hesitation. My right hon. Friend the Secretary of State has made it clear that the options are devolution on 26 March, or dissolution on 26 March. The time is right for us to make a push forward, and I believe that the last outstanding challenges to devolution are being overcome.

One of the key aspects of the St. Andrews agreement was the need for discussion and a commitment on working towards the devolution of policing and justice in May 2008. New clause 5 sets out the broad details of a further model for a Department with policing and justice functions. The model was devised following discussions with Northern Ireland parties, and in the Government’s view, it could be likely to give rise to a broad acceptance among parties and consensus on a new model for the devolution of policing and criminal justice.

The Secretary of State, the Under-Secretary of State for Northern Ireland, my hon. Friend the Member for Wythenshawe and Sale, East, and I hope for consensus among the political parties on the way forward in the event of discussions on policing and criminal justice. We have talked many times in the Chamber about the triple lock and the fact that the First Minister and Deputy First Minister need to make a proposal to the Assembly, that the Assembly needs to agree and to make a request to the British Government, that the British Government have to make a proposal to the House of Commons and that the House of Commons has to approve devolution. However, we must address the model for that devolution. New clause 5 is a further option that represents as good a prospect as any for the resolution of any possible disagreement on the devolution of policing and criminal justice. It will add to the models that have already been included in legislation.

It is unusual that provision is being made, with regard to this particular model only, for it to be implemented either by the Assembly, by choice, or by the Secretary of State, reluctantly, in the event that the Assembly cannot agree on a model for the devolution of criminal justice and policing. It is our clear wish that the Assembly should reach cross-community agreement on any model for a future devolved Department, but in the event of such agreement not being reached, the Secretary of State will, as a last resort, have an order-making power to impose on the Assembly the model in new clause 5, subject to the approval of both Houses of Parliament.

The Minister speaks of the model for any future policing and justice Department. Does he accept that many people—not just Unionist, but right across the community—have concerns about any political party or movement that has been associated for 30 years with crime, violence and terrorism, and that a period of time needs to elapse to ensure that people see that that group has become sanitised and has emphatically departed from its old ways, before consideration can be given even to the model that might be considered for devolving policing and justice?

In the St. Andrews agreement the Government expressed their wish to see the devolution of policing and criminal justice matters by May 2008. We want to have discussions with the Assembly, and the Assembly must reach a conclusion on those matters, but there is a period of 12 months—from now, 15 months—for those discussions in any potential devolved Assembly that is restored on 26 March, and the triple lock applies.

There is an opportunity during that period for the issues that the hon. Gentleman mentioned to be resolved satisfactorily. The Government see devolution as a distinct possibility. I accept that he has concerns about the matter. There has been tremendous movement in the way that Sinn Fein have operated up to the ard fheis in the past couple of weeks. That movement, in my view, will continue through the next 12 months and gives the opportunity for that devolution to be considered by the Assembly, and ultimately, with the triple lock that we have mentioned, by the House of Commons.

The Minister said loudly and clearly to the House today that it is the Government’s intention to “stick to the terms” of the St. Andrews agreement. He will know that that agreement states that it is

“for the Assembly to request the devolution of criminal justice and policing from the British Government by May 2008.”

It is not acceptable for the British Government to reverse what was agreed at St. Andrews and impose the provisions of the new clause. Has the Minister unpicked the triple lock?

I think that the hon. Lady and I are saying the same thing, in the sense that the Government are committed to the arrangements under the triple lock whereby the First Minister and the Deputy First Minister propose to the Assembly, the Assembly agrees, and it requests the Government and the House of Commons to support that devolution. New clause 5 adds a further devolution model for consideration.

If we reach a point where the First Minister and the Deputy First Minister have proposed devolution, the Assembly has accepted devolution, and the House of Commons has voted for devolution, but the stumbling block is the model of devolution, and if the Assembly cannot reach a conclusion on the model of devolution, the Secretary of State will seek to impose a model to help resolve the impasse. That is the purpose of new clause 5. It is not intended to interfere in any way with the Assembly, which I hope and expect will be restored on 26 March, or with its ability to choose a route for the devolution of policing and criminal justice.

Can the Minister state clearly that in none of the models are the Government suggesting that they will impose a Minister of policing and justice on the Northern Ireland Assembly or on the people of Northern Ireland?

No. The model in new clause 5 is in addition to those in the 1998 and the 2006 Acts. It is for the Assembly to fill that post via election from an Assembly Member. The Government are simply saying that in the event of no agreement being reached on the model, they would consider imposing that in new clause 5, reluctantly, at the last possible moment, if that was the only matter that was stopping the devolution of policing and criminal justice. The key point is that it is for the Assembly, through its elected officials and the Assembly’s vote, to request that devolution. We want it to happen by May 2008, but it is for the Assembly to make that judgment in due course.

Is the Minister telling us that the Secretary of State has completely dropped the suggestion that was in his paper that was issued during the Christmas recess in late December, namely, that if a vote had not been taken in the Assembly by May 2008 to have devolution and to appoint Ministers, the Government would take all steps necessary to make that happen, including the appointment of Ministers?

The Secretary of State wants the Assembly to make the decisions on the devolution of criminal justice and policing. When it is restored in the next 12 months, I hope that it will put that triple lock proposal to this House. My right hon. Friend will impose new clause 5 if that is the stumbling block. I hope that that satisfies my hon. Friend.

New clause 5 incorporates the power for the Assembly to adopt the new model. It provides for it to be in the charge of a Northern Ireland Minister, supported by a Deputy First Minister. Subsection (5) sets out an order-making power under which the Secretary of State may establish the Department using the model if the Assembly has been unable to reach agreement. Subsection (6) allows for a Department of policing and justice created under this model to be established in shadow form until the point at which policing and justice functions are devolved. It also allows for a Justice Minister designate and a Deputy Justice Minister designate to be elected before the devolution of policing and justice, and provides that they will take up their positions provided that they take the pledge of office in due course. The proposal to have a deputy Minister is intended to be temporary. The new clause means that that would, in effect, lapse after three years unless the Assembly decides within that time scale to retain it in the longer term.

Subsection (7) places a duty on the Assembly to review the working of the model and to report on the matter no later than two years and 10 months after devolution of policing and justice. Subsection (8) gives effect to the associated schedule and subsection (9) provides that the order to abolish the deputy Justice Minister post may be made by the negative resolution procedure.

Government amendment No. 28 and new schedule 1 also apply. New paragraph 11B of schedule 4A to the 1998 Act amends the arrangements made by the Northern Ireland (St Andrews Agreement) Act 2006 for appointing the First and Deputy First Minister so that the Justice Minister and Deputy Justice Minister are appointed after the First Minister and Deputy First Minister but before other Northern Ireland Ministers.

On a question of definition, in the Northern Ireland (Miscellaneous Provisions) Act 2006 the Government used the phrase “junior Minister”. Does the Minister regard “deputy Minister” and “junior Minister” as interchangeable, or is there a purpose in having the two different phrases?

The new clause uses the phrase “deputy Minister” in line with the titles First Minister and Deputy First Minister. The individual will be the deputy Minister. There will be a Minister in the Executive and there will be a deputy Minister who is outside of the Executive. That is a model for the Assembly to choose, should it wish to do so.

I understand that. The Minister may want to come back to me, but I am asking him to explain why the phrase “junior Minister” is used in some legislation and “deputy Minister” used in this legislation. There may be some logical reason for it but, for the sake of definition and to avoid wrangles within the Assembly, it is probably helpful to have on the record the reason why the two different phrases are used. I recognise that it may take the Minister 10 or 15 minutes to consider that.

I will respond to the hon. Gentleman when we have checked the legality of the position. In essence, the model that we have before us today will ensure that the Justice Minister is a member of the Executive and that the Deputy Justice Minister is not a member of the Executive.

The Minister has mentioned the justice Minister and the deputy justice Minister. Will he make it abundantly clear that the Secretary of State is not taking any powers to force a shadow deputy Minister on the Assembly against the free vote of that Assembly?

The powers that the Secretary of State is taking to impose a model—the model in new clause 5 is the model that the Secretary of State would wish to impose—would apply in the event of the Assembly not being able to agree a model for devolution while agreeing the principle of devolution as a desirable outcome. The powers for the Assembly to determine its operation in terms of the wish for devolution are still there, but the question of the model will be for the Secretary of State in the event of the non-resolution by the Assembly of any potential model. The Government want the Assembly to make its decisions in its own time on these matters, but we retain the right to impose a model if devolution is progressing but the stumbling block is the final model.

Although it is true to say that the powers allow the Secretary of State to impose a model, the Minister has not suggested that the Secretary of State is taking upon himself any right or any power to impose a shadow Minister on the Assembly against the will of the Assembly.

The Secretary of State has the power to impose the model in new clause 5, which potentially includes a shadow Justice Minister. The Government want the Assembly to reach a conclusion. These are last resort measures for the Government to consider.

Is the Minister therefore saying that if the Secretary of State, perhaps as a last resort, were to impose the model, that model would then go back to the Assembly, in which case it could well be that that the Assembly would still be unable to decide exactly who should take up the positions? Is that a possible scenario?

That could well be a possible scenario. Again, I emphasise that it is for the Assembly to determine the model for devolution. The model before us today will give the power to the Secretary of State to impose this particular model in the event of the Assembly not reaching a conclusion. I hope that the Assembly will reach a conclusion, which is the basis on which we are proceeding.

The Minister has still not answered the question. I am not talking about the Secretary of State imposing a model on the Assembly. I want to know whether the Secretary of State has the power, after imposing a model, to impose a Minister, a shadow Minister or a shadow deputy Minister for the policing and justice portfolio?

The choice of those Ministers is for the Assembly. The Secretary of State will not choose the Minister; the Assembly will choose the Minister. In the event of an impasse on the model of devolution, the Secretary of State will—

The Minister has not answered the question.

I have answered the question: the Secretary of State will consider imposing a model, if the model issue is the stumbling block for devolution. The Assembly will eventually decide who fills those posts.

And if the Assembly does not do so, who will impose the shadow Minister and the shadow deputy Minister? If the Assembly does not do so, does the Secretary of State have that power?

The Secretary of State’s role is confined to putting in place the model within which the Assembly can operate. New clause 5 simply says to the Assembly that if devolution is agreed without a model for devolution being agreed, the Secretary of State has the power to broker a deal by imposing this particular model on the Assembly. Ultimately, the Assembly will choose who fills that post.

I must be missing something here. The Minister has not clearly stated that the Government do not reserve the power to appoint Ministers. If he could say that there is no question of a Minister or shadow Minister being imposed, that would clarify the matter for the House.

It is not the Government’s intention to impose a Minister on the Assembly in any way, shape or form. The purpose of the new clause is to put forward a further model that the Assembly can consider and come to a conclusion on whether it wants to adopt it. In the event of the Assembly’s not agreeing on a model because of differences between Members, the Government reserve the right to impose this model on it. Who fills that model is a matter for the Assembly. I cannot be any clearer than that.

Perhaps I could have another try. The House understands that the Government are taking the power to impose the model—we can draw a thick black line under that. We are trying to draw out from the Minister whether he will, under any circumstances, have the right—the power—to impose a stated person to be a Minister or shadow Minister. Will he have that power, or not? It is a fairly simple question.

As far as I am concerned, the Secretary of State does not have that power. The purpose of the new clause is to put down a model for the Assembly. The people who will elect individuals to posts are in the Assembly itself. This discussion is about whether the Assembly has the ability to put in place a model. If it does not have that ability when it wishes to take forward devolution, the Secretary of State will impose the model that is before us today.

To make it absolutely clear, does the Minister therefore agree with the Secretary of State, who said when he came to the Assembly’s Sub-group on programme for government that he had no intention of taking any power to impose any Minister on the Assembly under any set of circumstances?

I think that I have said—even if not to the extent that hon. Members wish—that there is no power in the Bill or the new clause for the Secretary of State to impose a Minister on the Assembly. [Interruption.] I thought that I had said that to the hon. Gentleman’s satisfaction, but obviously not. [Interruption.] I am pleased that he is content. The purpose of the new clause—I know that I repeat myself, but it is for the sake of clarity—is to ensure that in the event of the Assembly not reaching an agreement on a model, the Secretary of State can place this model before it for consideration.

The Minister is in essence confirming that the Secretary of State has withdrawn what he gave us all on the third or fourth day of Christmas in terms of the intention to be able to impose a Minister if necessary. However, he has also said that the power to impose a model is to deal with the situation only if the issue of the model is the last stumbling block to the devolution of justice and policing. If other issues are stumbling blocks—if, for whatever reason, the DUP wants to exercise its triple lock—the Secretary of State has no means of dealing with that. We do not have a date determined for the devolution of justice and policing.

The hon. Gentleman has been with me in Committee upstairs and on the Floor of the House when we have discussed other legislation in relation to the triple lock. The Government have been very clear that we want and expect devolution to the Assembly to take place as soon as possible—if possible, by May 2008. However, it is ultimately up to the First Minister and the Deputy First Minister to propose the matter to the Assembly, which must agree and make a request of the Government, after which a vote will take place in the House on the proposal. I hope that my hon. Friend the Member for Foyle (Mark Durkan) will see that happen in the next 12 to 18 months. I repeat that it must be a matter for the Assembly to consider, and we want that to happen.

The purpose of the new clause is to ensure an extra model for consideration by the Assembly. If the events that I outlined happen—the First Minister makes a proposal, the Assembly agrees and the Government agree—but the election mechanism causes a blockage, we will reluctantly use the powers under the new clause to ensure that a workable position is achieved.

The new clause states:

“If it appears to the Secretary of State that there is no reasonable prospect that the Assembly will pass an Act”

to set up a model for devolving policing and justice and especially a model for the relevant Department. Will the Minister confirm that the fall-back position for which the new clause provides will not be exercised before May 2008? Will the Government comply at all times with the triple lock requirement, even if the date of May 2008 passes? Will he put that on the record?

Again, I thought that I had put that on the record. Obviously, such matters need repeating. Nothing has changed on the triple lock, which is in place. However, the Secretary of State wants to consider ways in which we can encourage the devolution of policing by providing for an extra model. In the event of a further model proving unacceptable, the Secretary of State will retain the right to impose the model if that is required to break the logjam. I emphasise that nothing interferes with the triple lock in the context of what we are discussing today.

The provisions are the outcome of a long-standing commitment to devolve policing and justice functions. We have always made it clear that we will not do that until the time is right, which is when the safeguards that I outlined have been established. Devolution cannot happen until the Assembly passes a resolution, with a cross-community vote requesting it. I put that on the record and hope that it satisfies the hon. Lady. The Northern Ireland parties in the Assembly must decide when the time is right and Parliament must agree.

On the timing of devolving the policing and justice powers, the Minister knows that some justice powers reside with the office of First Minister and Deputy First Minister, especially those for appointing judges and so on. Under the Justice (Northern Ireland) Act 2002, the Secretary of State must issue a commencement order for those powers. Do the Government intend not to devolve the powers in the 2002 Act for judicial appointments until there is overall devolution of policing and justice in Northern Ireland?

I hope that I can help the hon. Gentleman. The Government made it clear in the discussion document that was published a year ago that they intend the functions to transfer, but only when justice functions generally are transferred. That remains the Government’s position and I hope that that satisfies him.

The group also contains amendments tabled by members of the Social Democratic and Labour party. Those amendments aim to circumvent the safeguards and allow the Government to impose the devolution of policing and justice matters without the Northern Ireland Assembly’s support and agreement. I am afraid that I must tell my hon. Friend the Member for Foyle—as I have done on several occasions in the past two years—that I do not agree with his proposal. It would go against the spirit of the Good Friday agreement and I cannot therefore support it. Not only that, but new clause 2 would require responsibility for policing and justice to be given to the First Minister and the Deputy First Minister, instead of being left to the Assembly’s discretion.

As I have said, my right hon. Friend the Secretary of State and I are reluctant to impose a model on the Assembly because we want the Assembly to determine the model. Imposing a model that appears to command little support in the Assembly and that it and the Committee on the Preparation of Government have effectively rejected cannot be right. The Secretary of State has made it clear through new clause 5 that the Government’s view is that if a model must be imposed on the Assembly, it should be the new one, not one of the previous ones. I reluctantly have to say to my hon. Friend—we are usually in common cause—that I cannot support his new clause and I ask him to withdraw it.

Before the Minister finishes, will he return to the issue raised by the hon. Member for North Down (Lady Hermon)? I find it a little confusing. New clause 5(5) includes the provision:

“If it appears to the Secretary of State that there is no reasonable prospect that the Assembly will pass an Act of the kind described in subsection (1)(a) and (b), he may lay before Parliament the draft of an Order”,

which will establish

“a new Northern Ireland department”.

It is confusing because subsection (1)(a) and (b) replace subsections (1) and (2) of the Northern Ireland (Miscellaneous Provisions) Act 2006. Is not the Secretary of State given the power to introduce the Department even though the Assembly has not agreed to do so? I am a little confused about the wording.

I will certainly look further into those points and respond to them during the course of the debate or in my winding-up speech. His points are detailed ones and I want to ensure that our provisions are legally correct with respect to them. I thus hope that I have given him the assurance that he seeks and I will certainly return to those issues in a few moments. We are also still reflecting on the matter raised by the hon. Member for Montgomeryshire (Lembit Öpik), but again I shall endeavour to respond later in the debate. I commend Government new clause 5 to the House, which I hope will accept it.

I thank the Minister for committing to come back to me on the difference between—or similarity between—the definitions of “junior Minister” and “deputy Minister”. It would be acceptable for the Minister to admit that the use of such terms is simply a matter of random variation, and that there is no difference between them. This might not seem important now but, as with so many aspects of Northern Ireland legislation, if the matter is not clarified, it could lead to problems in the future.

New clause 5 could be useful, if the intention is to allow the Assembly as much flexibility as possible in regard to the structure of the Department. However, proposed new subsection (7A) is a bit worrying because it seems to allow the Secretary of State to lay an Order in Council to provide for a new Northern Ireland Department exercising justice and policing functions

“if there is no reasonable prospect that the Assembly will pass an Act”

to establish such a Department itself.

I heard what the Minister said about this; he got himself into rather deep water. This brings us back to an issue that we raised during the passage of the Northern Ireland (Miscellaneous Provisions) Act 2006. We are a devolutionist party, and we are on record as having long supported the aim of devolving policing and justice functions to the Assembly. Given the importance of policing to society, however, we must be very careful about when those functions are devolved. That is what lies behind hon. Members’ questioning of the Minister a few minutes ago.

The Assembly has been suspended for four years. From the Assembly elections in 1998 until the beginning of this suspension in October 2002, the Assembly went through a series of stop-start iterations in a process involving various periods of suspension. Even when it was functioning, there were several crises and resignations of First and Deputy First Ministers. In such an unstable situation, would it be wise to devolve policing and justice functions to the Assembly by imposing that kind of a solution unilaterally? We cannot allow a function as important as policing to be devolved to an Administration that does not appear to have the necessary stability to apply such functions sensibly.

The hon. Gentleman is right to say that it would be wrong to devolve such powers to the Assembly against its wishes. As I understand it, however, it has been confirmed over and over again that that is not the intention. The triple lock is in place. We are talking about a model that is one of many; others might come along. At the end of the day, whether the powers are devolved will be a matter for the Assembly, because the triple lock is in place.

I hope that the hon. Gentleman is right, but that is not what the Bill appears to propose—

rose—

I would be happy for the Minister to intervene and to provide a definitive answer to this question. I am not the only person who has concerns about the phrasing of the legislation.

I am afraid that my communications skills must be letting me down today. I thought that I had said that the triple lock applied. The Northern Ireland (Miscellaneous Provisions) Act 2006 and other matters relating to the devolution of criminal justice that we have dealt with over the past 12 months have established the triple lock, which ensures that the First and Deputy First Ministers have to propose the measure, the Assembly has to accept the proposal, the British Government have to agree to it and the House of Commons has to vote on the matter. If anything, that is a quadruple lock.

The Minister’s words are reassuring, but this does not seem to be set out in the Bill—[Interruption.] The hon. Member for Tewkesbury (Mr. Robertson) appears to share my concern about this. It is not what the Minister says, but what the Bill says that matters.

I raised this issue with the Minister earlier, and he has kindly agreed to come back to us on it later. I want to draw the attention of my hon. Friends in the Democratic Unionist party to subsection (5) of the new clause, which provides that the Secretary of State may establish a new Department if

“there is no reasonable prospect that the Assembly will pass an Act of the kind described”

in subsection (2) of the new clause. Subsection (2) overrides subsections (1) and (2) of the Northern Ireland (Miscellaneous Provisions) Act 2006. I do not have the benefit of the technical support that the Minister has, but as far as I can see, this means that the only Act that will now be applicable is the one referred to in subsection (2) of the new clause.

It is in the proposed subsections 1(a) and (b).

Yes, subsection 2(1)(a) and (b). My reading of the new clause is that proposed new subsection (7A) will override that, but I might be wrong. This is worth exploring. I entirely agree with the concerns that have been expressed by my hon. Friends in the DUP.

We all agree on what we want the Bill to do, but there is a question over what it actually does. The hon. Members in the DUP should share our concern if the Minister’s assurances are not backed up by the legislation.

The Government might have the best intentions in the world today, but if a Secretary of State in the future chose to interpret the legislation as I believe it can be interpreted, and as the hon. Gentleman correctly explained, we have a problem. It takes us to the point made by the hon. Member for North Down (Lady Hermon) about the triple lock process. At the time, the Minister reassured us that devolution of policing and justice would be subject to that triple lock. He emphatically sought to reaffirm that today, but for the reasons that I have outlined—I do not need to repeat them—we are concerned that the triple lock process is compromised to an extent because of the way in which the legislation is phrased.

I have no other motive for raising this except to highlight a concern that could come back and bite us. As I said, we support the aim of devolving policing and justice functions to the Assembly, but we are concerned about the apparent ability of the Secretary of State to take the decision to devolve such powers even if the Assembly does not want them or if it is not stable enough to exercise them responsibly. I do not for a moment suggest that the current Secretary of State for Northern Ireland would do that, but we are not framing legislation for the present; we are framing it for the indefinite future. Northern Ireland business is notoriously good at taking much longer than we expect.

I ask the Minister to clarify that and to explain the use of the phrase “no reasonable prospect” in proposed new subsection (7A). Should a Secretary of State really be devolving such important powers to an Assembly if there is no reasonable prospect of that Assembly taking the decision itself to ask for such powers? Those are our concerns about that part of the new clause.

New clause 4 is interesting because it raises other questions. We need to ask the Government for a number of clarifications and for them to give many more specific reassurances. The third report of the Select Committee on Northern Ireland Affairs for the 2005-06 Session gave a number of examples of east-west organised crime, such as cigarette smuggling to Scotland and, most worryingly, the use of Northern Ireland as a back door into the United Kingdom by people traffickers. It would be useful to have a co-ordinated approach to organised crime in the UK. However, the Government should reassure the House that the police in Northern Ireland will not lose their ability to fight a lot of the organised crime that goes on within Northern Ireland and which is Northern Ireland-specific in terms of the links with paramilitary organisations. There could be an unintended consequence that leads to that kind of restriction.

The police and the Assets Recovery Agency have done a huge amount of work on that problem, with a good degree of success. It would not be helpful to Northern Ireland, or to the fight against organised crime, for any expertise to be lost or diluted. I hope that the Minister will make a commitment to work closely with the south of Ireland on the joint challenge of securing our sea and land borders.

As the Minister said, new clause 5 introduces a fifth model on top of the four that the 2006 Act gave us. When we debated that Act, I predicted that the Government would come back with at least one additional model because, from the nature of things, it would obviously be needed. The Minister and other hon. Members shook their heads, but lo and behold we have an additional model, this time as a default model.

The Minister emphasised that the Secretary of State would use the powers in new clause 5 if the one stumbling block to the devolution of justice and policing was the departmental model, but it is highly likely that the departmental model will not be the stumbling block. Other considerations or calculations will cause the DUP to resist the devolution of justice and policing by May 2008 or at some other time. That is the fatal flaw arising from the 2006 Act and it still needs to be addressed. We have argued to the Government that giving the DUP the triple lock in such an indefinite and unfettered way means that the date of May 2008 is merely aspirational. No matter how many times the Secretary of State says it, no matter how many times the Prime Minister says it, no matter how many times Gerry Adams and Martin McGuinness say it, the date remains aspirational at best unless the Government back amending legislation to make the date of May 2008 a definite, determined backstop, a time by which the devolution of justice and policing must be achieved.

How is that different from what goes on in Government generally? A Prime Minister appoints a Secretary of State; the Secretary of State appoints deputy Ministers, who have delegated responsibilities.

As the Minister is aware, we are not dealing with that situation here; we are dealing with the situation in Northern Ireland, and the suggestion has been made that, because there could be difficulties in respect of parties allowing other parties’ representatives to take up the post of Justice Minister, as a solution the post of deputy Minister might be added to the mix. It is thought that that post might have a significant balancing role. However, as the Minister pointed out, the deputy Minister will not attend the Executive, although the Secretary of State’s Christmas statement contained the suggestion that the deputy Minister might attend the Executive from time to time—that they might have a sort of high-chair at the Executive table in which they would be allowed to sit from time to time.

Why any party, or any member of a party, would want a post in such circumstances is beyond me. If a default is needed for the current model, I am not sure that the default that the Government have come up with is the best or most sensible one. This default will be hard to implement not only in terms of parties agreeing to other parties taking positions, but it will be difficult for some parties to agree to themselves taking up those positions.

Our new clause 2 is an attempt to break the logjam in the devolution of justice and policing. I say openly and honestly that we are seeking to circumvent the indefinite DUP vetoes that are in place courtesy of the triple lock and of Sinn Fein and the British Government agreeing to them in the comprehensive agreement and in the Northern Ireland (Miscellaneous Provisions) Act 2006. New clause 2 would provide that if the Assembly has not passed legislation setting up a new justice Department by 1 May, the Secretary of State may make an order setting up a new justice Department, to which powers will be devolved under the direction and control of the First Minister and the Deputy First Minister acting jointly.

The hon. Gentleman talks about the Social Democratic and Labour party’s amendment circumventing the triple lock. How would it contribute to better community relations in Northern Ireland if the wider community was not supportive of setting aside the triple lock and there was a kickback or resentment and a growing escalation of communities’ anger at the possibility of that lock being bypassed? How would he present that argument, alongside enhancing confidence in the community about the devolution of policing and justice at some point in the future?

I thank the hon. Gentleman for his question, and I shall respond to it in the following way. Sinn Fein is using as its excuse not to take part in the policing arrangements the fact that it does not have a definite date for the devolution of justice and policing. New clause 2 would give a definite date for that devolution, thereby removing that excuse from Sinn Fein and ensuring that it will have to participate in the Policing Board when nominations to it take place after the election. I believe that if Sinn Fein fully participates in the policing arrangements, community confidence will significantly rise. People have welcomed the progress made in Sinn Fein’s position as a result of the resolution passed at the recent ard fheis; would not confidence be even greater if Sinn Fein were to implement fully that resolution with no qualifications and no holding back?

Under our amendment, the triple lock would still apply until May 2008; parties would have discretion and choices as to what form of devolution they want and when exactly they want that to be activated. However, by May 2008 devolution would take place, not with the Secretary of State having to impose a model or having to impose the appointment of Ministers—as he suggested might possibly be the case in his paper issued over the Christmas period—but simply by the provision of the default that the powers would go to the Office of First Minister and Deputy First Minister. My belief is that that would concentrate the minds of the people in that office, because if they had any sense they would not want those functions resting long in their office.

Does the hon. Gentleman not accept that much of what he wants is contained in new clause 5? I am reading it so I am completely sure that it says that the Secretary of State can create a new Department that manages policing and justice if there is no reasonable prospect that the Assembly will pass an Act of the relevant kind. Therefore, the hon. Gentleman should welcome new clause 5 because it already gives the Secretary of State the chance to circumvent the triple lock.

I thank the hon. Gentleman for his intervention. The Secretary of State has said on other occasions that he is introducing new clause 5 partly in response to our arguments, but the fact is that it does not compare at all with new clause 2. Under new clause 5, the Secretary of State would simply impose a departmental model if that was the last outstanding issue—it would not secure devolution of justice and policing by May 2008. If, however, there were other obstacles to devolution, the Secretary of State would not produce a model and the British Government would take no action to deal with the obstacles.

New clause 2 makes it clear that devolution of justice and policing can and will happen by May 2008, and it gives the First and Deputy First Ministers every incentive to use their powers to make proposals before that date, and to use their influence to ensure that devolution is passed in the Assembly according to a suitable model before May 2008. Otherwise, the functions will transfer to their Department, and they will then be free to use the Assembly’s procedures to create another department, and to transfer the functions. However, our political goal in new clause 2 is to ensure that we have a definite date for the devolution of justice and policing.

The hon. Gentleman says that he wants a definite date, but his new clause 2 states that

“the Secretary of State may lay before Parliament”

such a draft order, so it is a flexible date, not a deadline.

New clause 2 says that for the very good reason that that form of words has been used throughout Northern Ireland legislation. As we know, Secretaries of State at times claim that they can foresee particular prospects—that certain other things might well be in the offing, and that they would not want to trip up some other, existing development. That is why we need to deal with the matter in this way.

I understand entirely what the hon. Gentleman is saying and what the Minister said, but new clause 5 is no different from the hon. Gentleman’s new clause. The point is what it actually says, not the interpretation.

New clause 5 is different in a number of respects. First, it imposes a model that we clearly do not favour, and once it is imposed we will be stuck with it until the Deputy First Minister’s role is reviewed and changed after one or two terms. Our proposal would ensure that, if the Assembly had agreed on a model and people had not agreed on a date before May 2008, we got devolution, and that the Secretary of State did not impose a model. The powers would simply transfer to the office of the First Minister and Deputy First Minister, who could dispose of the powers under a subsequent order in the Assembly. So new clause 2 would give us a definite date and would ensure that we properly respected the difference between the role of the Assembly and the devolved structures, and of Westminster and the Secretary of State. It is clear, however, from earlier discussions and from the interventions of many Members that new clause 5 would lead to confusion, so new clause 2 is different in a number of key respects.

I am most grateful to the hon. Gentleman for giving way. I have listened very carefully to him and I am growing increasingly frustrated with his argument. I am particularly astounded by it, given that he and his party claim to be a pro-agreement party. He knows perfectly well that, according to the agreement, the transfer of any currently reserved powers needs the broad support of the parties. Indeed, the Northern Ireland Act 1998 points out that cross-community support is needed for the devolution of policing and justice. How can he reconcile new clause 2 with his party’s claimed pro-agreement stance?

We are a pro-agreement party—we are completely pro the devolution of justice and policing. It is a priority for us and it has been delayed for far too long, which is why we are trying to determine a date on which it is achieved. The hon. Lady mentions the provisions of the Good Friday agreement and of the 1998 Act. Under the latter, there must be a vote in the Assembly with cross-community support. The Northern Ireland (Miscellaneous Provisions) Act 2006 proposed a tighter definition requiring a vote by parallel consent. On the basis of the current numbers, the vote would be entirely in the control of Sinn Fein and the DUP.

I tabled an amendment in Committee to reverse the triple lock on cross-community support, as opposed to parallel consent, and the hon. Lady who now preaches to me about consistency voted against it. She voted against adhering to the provisions of the 1998 Act. The inconsistency is in the hon. Lady’s position, not in ours.

I am grateful to the hon. Gentleman for allowing a so-called preacher to intervene again. We are not talking about the devolution of health or education, which are already with the Assembly. We are talking about the devolution of policing and justice, which are fundamental, key issues in Northern Ireland. Surely the hon. Gentleman should stick to the provisions of the agreement, which require

“the broad support of the political parties”.

I have not invented that and it was not dreamed up by the Ulster Unionist party: it is in the Belfast agreement. That is the position that I have defended.

The date of May 2008 is in the St. Andrew’s agreement. We accept the date and we want to give it real meaning. It is an issue, because unless we create more certainty around it, uncertainty and confusion will grow around Sinn Fein’s position on policing. The process can do without that. More confidence would be created if we had certainty about a date for devolution of justice and policing, which would allow or force Sinn Fein to commence its full involvement in policing. That could create more confidence, and we would then have achieved agreement and sufficient confidence before May 2008 to ensure that there is agreement in the Assembly. The purpose of our clause is to ensure that parties have every incentive and we have the best circumstances before May 2008.

New clause 4 deals with another matter of deep concern to the SDLP. In 2005, the Government announced that primacy in intelligence policing in Northern Ireland would pass from the PSNI to MI5. That is due to happen in October and it was re-confirmed, as the Minister suggested, in a discussion paper on the devolution of justice launched last February.

The Government argue that after the devolution of justice a devolved Minister for justice from a particular party could not receive briefings on subversive activity. Nobody is really arguing for that. The issue of who gets intelligence information—the devolved Minister for justice or the Secretary of State, if it is to do with national security—is a separate issue from that of who has primary responsibility for gathering the intelligence. The SDLP argues that the PSNI should continue to have primacy in intelligence gathering, including on subversive activity, as provided by Patten. The Government want to give it to MI5.

Patten envisaged that on matters of national security the Chief Constable would report not to the devolved Minister for justice but to the Secretary of State. We accepted that, but Patten also envisaged that the Chief Constable would do the reporting, not MI5. The Government’s proposals are a departure from Patten.

I shall explain why the change is so wrong. First, the PSNI has undergone the Patten reforms, whereas MI5 has not. We cannot ask how many people work for MI5, including how many of them are Catholics or Protestants. It will not tell us. We are not allowed to know anything about the organisation, but we are asked to have confidence in it. It is not only nationalists who should have a basic problem with that. The enlarged role for MI5 could destabilise the new beginning to policing.

Secondly, organised crime and subversive activity have gone hand in hand in Northern Ireland, which is why one organisation—the PSNI—should be in the lead when it comes to monitoring and tackling them. Giving any of that responsibility to MI5 carries the huge risk that it will do what it and the RUC’s special branch did in the past—hog intelligence for its own reasons and not share it with the police officers responsible for combating and pursuing those crimes and for initiating prosecutions. As a result of that, the guilty got away with murder and other crimes, so we have cause to be concerned about the implications of passing that responsibility to MI5. The House need look only at what happened with the Omagh bombing: it took MI5 seven years to pass on a warning, which the PSNI received only last year.

Thirdly, many welcome changes in matters such as informer handling and intelligence sharing in the PSNI have stemmed from the Patten report and the Stevens report into collusion, and from the Omagh report and the review subsequently commissioned by the Northern Ireland Policing Board. Taking away primacy in intelligence policing undermines those successful and important changes. Indeed, no one has any idea whether the safeguards recommended by the Police Ombudsman for Northern Ireland in her very significant McCord report will apply equally to MI5. The Chief Constable has said that they will apply to the PSNI, and that is welcome, but will that still be the case when the change to primacy in intelligence policing is introduced? There is a clear danger of the guarantees and protections in Patten being diminished or eroded.

Fourthly, the PSNI is accountable to the Policing Board and the police ombudsman for any human rights abuses perpetrated by its officers. There are structures that ensure that nationalists, Unionists and everyone else may have growing confidence that concerns or complaints about the PSNI will be dealt with, but that is not the case with MI5. The Government have continually resisted calls for MI5 officers in the north to be subject to the police ombudsman.

Fifthly, the Patten report made it explicit that

“the police service must remain equipped to detect and deal with terrorist activity, and for this they will need good intelligence capability.”

That key recommendation will be undermined or compromised if MI5 takes over primacy in intelligence policing. Again, the Omagh bombing gives an example of what can go wrong. Sam Kincaid has told the Omagh families that MI5 had intelligence that there was going to be an attack on Omagh, but that it did not pass it on. When pressed on the matter, Chief Constable Hugh Orde said MI5 held nothing back from the investigation into the bombing, but he did not deny Sam Kincaid’s allegation that MI5 did not pass on information before the bombing. We can expect such problems to arise more often if MI5 takes primacy in intelligence gathering, and the potential consequences are serious.

The question of MI5’s future in Northern Ireland has implications for the conduct of the devolution of justice and policing. The British Government will determine what is meant by the phrase “national security” and the scope of the work done by the intelligence services, so the role given to MI5 could grow. Moreover, if it has primacy in intelligence policing, its work will be outside the purview of the devolved Administration and Assembly. In the Second Reading debate on 13 December 2006, the Secretary of State told us that the Bill would give the Director of Public Prosecutions powers to issue certificates to ensure that there would be no jury trials, and that he could do so on the basis of information from the security services—MI5.

The Bill also includes provisions that would permanently recycle special powers for the police and the Army that were previously only temporary during the worst of the troubles. The legislation will remain under the control of the House and the Secretary of State; it will not be controlled by the devolved Assembly. A devolved Minister for justice could receive representations from defendants facing trial in courts funded and administered by the court service that serves the devolved Ministry stating that they had not been allowed a jury trial and had been given no reasons why. The devolved Minister would be a mere spectator in a hopeless and helpless situation. He would be unable to amend or restrict the special powers of the police—although we do not say that the Minister should interfere in the exercise of police powers; unlike others, we do not believe that Ministers should boss the police.

Politicians should not boss the police and we must ensure that policing in Northern Ireland is not seen as the accessory of partisan controls or interests. That is why the Patten controls are important. However, we do not want devolved Ministers, a devolved Assembly and its Committee left in a completely hopeless and powerless state, while significant activities that impinge on policing and justice, and which they have no power to amend, advise or question, take place beyond their control. That raises fundamental credibility issues about the future of the devolution of justice and policing. That is not what the Social Democratic and Labour party means by the devolution of justice and policing, and I should be surprised if it is what Sinn Fein means when it says that it wants to ensure that there is no lingering British control or interference in relation to justice and policing. The Bill and other measures proposed by the Government, including MI5, provide for just such ongoing control by the “securocrats” and other interests.

The hon. Member for Foyle (Mark Durkan) will forgive me if I do not follow him down the track of his latter remarks, which are, I am sure, the opening salvo of the election campaign in which he will show that the SDLP is more green and belligerent than Sinn Fein. However, I shall comment on some of his earlier remarks because he, at least, appears to have read and understood the Bill, which cannot be said for the Liberal Democrat spokesperson. If the hon. Member for Montgomeryshire (Lembit Öpik) has read the Bill, he has certainly not understood it, because had he done so he might have raised his voice on behalf of his sister party in Northern Ireland, which is unfairly treated by the measure. Later I shall point out to the hon. Gentleman how he was negligent, and at that stage he may want to set his position straight.

First, however, I want to indicate the unsatisfactory manner in which the Government are approaching the issue. We are at the Report stage of an important piece of legislation, yet the Government are introducing a significant provision through a side door. As we can see by the confusion in various quarters of the House, their proposals required a proper Committee sitting so that they could be thoroughly scrutinised and perfectly understood—if, indeed, anything is perfectly understood at the end of a Committee stage. None the less, it is clear that the Government have introduced the new clause on a whim, to get the Bill through post-haste. But why? Why is there such a rush to pass the Bill?

The Minister’s best hope is that it might be possible for the Assembly to address the issue by May 2008, so why is he introducing the legislation in 2007 and requiring it to be steamrollered through the House in such a manner? No one on this side of the House has asked for it to be done in that way—and I get the impression from the speech made by the hon. Member for Foyle that he has not exactly been pushing the Minister for this piece of legislation. I am not sure—perhaps the Minister will tell us—why there is a rush to get this piece of legislation on to the statute book when, as he says himself, it is clearly at least 14 or 16 months before what it contains could be imposed on us. Let us be clear: the Minister has a motive that he has not shared with the House. Perhaps when he responds to the debate he will share it with us.

Could the reason why we are debating the measure now, and not in Committee, be because it could be imposed without going through the triple lock? That is my fear. That does not seem to have been addressed by anyone.

The difficulty that a number of Members face with this issue is that they cannot separate in their minds the creation of a Department from the fact that that Department would not have powers devolved to it. The reality is that all that the Bill does is to create a shell. It allows the model to be put in place, but the powers that would allow that Department to operate would be devolved only at such a time as the triple lock would operate. That is what is set out in the Bill and that is what the Minister was encouraged to say and eventually got round to saying, after at least half a dozen attempts to get him to do so by my hon. Friend the Member for South Antrim (Dr. McCrea) and others. It is what the Secretary of State said when closely examined on the issue in the Sub-group on Policing and Justice in the Assembly. I believe that, even if we had discussed this matter in Committee, the same conclusion would have been reached.

My hon. Friend is absolutely right in that analysis. To reinforce that point, hon. Members should look at subsection (6) of new clause 5, which introduces into the Northern Ireland Act 1998 section 21B, on section 21A(5A). Proposed new section 21B(2) states that any Act or order introduced by the Secretary of State may include provisions that any

“department is to be treated…as not having been established until the time at which devolved policing and justice functions are first transferred to, or conferred on, the department (‘the time of devolution’).”

That reinforces the point made by my hon. Friend and others on these Benches, and by the hon. Member for Foyle, that we are talking about a shell of a Department—a model with no devolved powers.

My hon. Friend is entirely correct and draws attention to a further element of the legislation that confirms what I am saying. I can see that the hon. Member for Montgomeryshire is still uneasy about the matter. He might want to go and sit beside the Minister and seek comfort from him on the issue. If he wants to intervene, I am happy to give way.

However much I may feel provoked by the hon. Gentleman, I can assure him that he is not going to drive me across to the Government Benches just now. The reason why I am disturbed is that my analysis of the provision in question is rather different. He may interpret it in the way that he describes, but it is perfectly feasible to interpret it as setting up more than just a shell, especially when one looks at subsections (7A), (7B) and (7C). Why is he so sure that the legislation, interpreted objectively, simply sets up a shell? It seems to do much more than that.

I am not interpreting the legislation; I am indicating exactly what is in it. It is the hon. Gentleman who is misinterpreting the legislation, because it does not provide any functions for the Department. That is the key issue.

In the St. Andrews agreement, the Government clearly set down their belief that devolution of policing and justice powers could occur by May 2008. The Government are of course entitled to their view on that matter, but none of the parties was required to sign up to that date at St. Andrews. Had they been so required, the Minister would have got the same answer on that issue as the party gives on the issue of devolution itself. We are a party that is condition led, not calendar led.

Throughout the process, it has been at the heart of the Democratic Unionist party’s strategy that we will not allow ourselves to be forced by deadlines to do things that would be wrong owing to the conditions on the ground. That must be the position of any sensible party if we are to have the stable and lasting devolution of any powers, including policing and justice powers.

The Minister will know that the DUP is a party that believes in devolution of the fullest possible kind. It thus believes that policing and justice powers should be devolved in the right circumstances and at the right time. He knows that that is our position because it was the position that we advanced to the Government back in 2004 when we considered matters that led to the Government’s comprehensive agreement. We made it clear that we were working towards the devolution of policing and justice powers. That is the endeavour of the DUP. I know that that is also the endeavour of the Government, and I hear that it is the endeavour of the Social Democratic and Labour party. However, the people who must build confidence so that policing and justice powers can be devolved in Northern Ireland are members of Sinn Fein. The DUP supports the police. The SDLP has taken up membership of the Policing Board and has publicly indicated its support for the police. No one questions the Government’s support for the police. The party that must prove itself to the people of Northern Ireland is, of course, Sinn Fein.

The DUP believes that the necessary community confidence must be in place before the powers are devolved to Northern Ireland. Whatever dates the Minister might put forward, the key point must be whether the community is confident that such powers should be devolved to the Northern Ireland Assembly. Among the criteria to consider at that stage would be whether the Assembly was sufficiently stable to have such sensitive powers devolved to it, and whether the model under which the powers would operate was workable and durable. We would also have to consider whether the Minister who would exercise the powers would have the support and confidence not only of one section of the community, but of the community as a whole.

When taking a decision on whether policing and justice powers should be devolved, any sensible democrat in the Assembly will make a judgment by considering such matters. They will not simply look at a calendar and say, “Ah, this is the day on which devolution should take place,” but will consider sensibly whether the circumstances on the ground are such that the powers can be safely devolved to Northern Ireland. That is the only judgment that a sensible politician would make.

I said that one of the criteria to consider will be whether the Assembly is sufficiently stable. I say to the Minister that the date of May 2008 would be at the earliest end of the tolerance of most people’s judgment of when the Assembly would be sufficiently bedded in and consolidated to allow such powers to be devolved. It is essential that Assembly Members deal with day-to-day politics and ensure that things are bedded in before the most sensitive and controversial powers are devolved to the Assembly.

Policing and justice powers are more controversial than health, education and other issues because they affect people’s lives: their safety, security and human rights. They relate to matters that touch every citizen in the country, every day. That is why such devolution cannot simply be forced by the calendar, and why great care must be taken when devolving such powers—and I say that as someone who wants the maximum number of powers, including the maximum number of policing and justice powers, to be devolved to Northern Ireland.

The second criterion that I mentioned was the model. The Minister was chided by the hon. Member for Foyle because this is the fifth model to be thrown out. I am not a betting man, but if I were, I would take a bet that it will not be the last model. Before too long, someone will return to the House with new legislation under which we will address the matter again. That is why I think that, to some extent, we are wasting our time dealing with this matter today. This will not be the last word on legislative arrangements for policing and justice powers being devolved in Northern Ireland. However, I recognise that the Government want to get things moving, so they have taken this step.

Some of my colleagues and I were heavily criticised. We irritated the Secretary of State—I know he was irritated because he told me so—with some of our remarks about the devolution of policing and justice. I said that, in the circumstances that then prevailed, where Sinn Fein was the largest party on the nationalist side and we were discussing a d’Hondt style of government, I could not imagine that in my lifetime there would be the community confidence in Sinn Fein that was necessary for those powers to be devolved. My hon. Friend the Member for Belfast, North (Mr. Dodds) was attacked because he said that he could not see that happening in his political lifetime. My hon. Friend the Member for South Antrim used a metaphor of distance rather than time, saying that it was light years away. Whether one uses the language of time or of distance, the message from all three of us was that there was no immediate prospect of the community in Northern Ireland saying that it would be a good idea for policing and justice powers to be devolved if Sinn Fein were getting their hands on the post of Minister with responsibility for policing and justice.

I speak for myself and I believe I speak for my colleagues. None of us made those remarks because we wanted to be belligerent or as a threat. None of those remarks was made in the House or outside because that is what we wanted to happen. It was a clear analysis of what we believed the community’s position to be in the light of a campaign that has gone on for decades, in which the very people who will be put in charge of policing and justice were blowing up courts and killing policemen. That is the reality.

The Minister can put whatever dates he likes on a calendar, but that will not change the minds of people in Northern Ireland, who ask whether it is sensible for somebody who blew up the Old Bailey and tried to blow up Scotland Yard to be appointed Minister for policing and justice? It does not take too long to consider that proposition. The Minister knows that I am talking about Gerry Kelly, the policing and justice spokesman of Sinn Fein. It does not require much thought to realise that that may not be such a good idea.

We made those comments not to be difficult, but to bring some reality to the issue and to let the Government know exactly what they were proposing in Northern Ireland and what the reaction would be in the community. The Democratic Unionist party recognised the difficulty and sought to help the Government resolve the issue. The officers of the Democratic Unionist party put forward a proposal in the Sub-group on the programme for government, and the proposal was unanimously endorsed by our officer corps.

We suggested that if the difficulty was that the community could not have confidence in a particular party, we should have a system whereby the Minister was elected by the Assembly on a cross-community vote, so only somebody who had the confidence of the community would have the post. Let us set a weighted majority and ensure that there is a high degree of support. Rather than a Unionist candidate supported by a few nationalists, or a nationalist supported by a few Unionists here and there, clear overall support from both communities would be required for the Minister to be acceptable.

To some extent, that has been the basis for the Government’s model. They have not gone as far as we did. We required a 70 per cent. vote and a number of other conditions, but at least the Government have recognised that it is possible for policing and justice powers to be devolved without the post being in the hands of Sinn Fein. Let us leave parties out of it altogether. The only person who is excluded under the Government’s system is somebody who cannot achieve the cross-community support that is necessary. That is the reality. My colleagues and I have made it clear that there are some people whom we cannot see as having that necessary support. I suspect that if I was to put myself forward for that position, I might not get the cross-community support that was necessary either. But who knows what the future might hold? However, the reality is that the position could be filled only if there was cross-community support.

5.15 pm

There is a further problem. First of all, as has been said, not all policing and justice powers would reside automatically in a policing and justice Department. There are some residual powers in the Office of the First and Deputy First Minister. It would be sensible, if and when the circumstances come around and we deal with the minutiae of the issue, for all the policing and justice powers to be put into the one Department, not spread about.

The other issue is that under this—I will put it in the most pleasant way that I can—peculiar system of government, there would be an ability on the part of any three Ministers to call in any issue dealt with by another Minister for a vote within the Executive. We are dealing in policing and justice with matters that, as I have said, are particularly sensitive. Some will have legal implications. It is clear that there will have to be procedures, arrangements, protocols—call them what one will—to ensure that there is some ring-fencing of the role of that Department because of the nature of the task before it. All those issues are essential and need to be dealt with before we can finally take decisions on the future of policing and justice in Northern Ireland.

I want to take the hon. Gentleman back to his point about the appointment of our most senior judiciary in Northern Ireland. As I understand it, instead of, as is the case now under legislation, the First and the Deputy First Ministers, acting jointly—that is the key phrase—to appoint the most senior members of the judiciary, the DUP would prefer those appointments to be transferred to a single Justice Minister. Is that the DUP’s preferred position?

There would not be a single Justice Minister unless we had confidence in that Minister. Is the hon. Lady’s proposition therefore that Martin McGuinness should be making appointments for senior posts to the judiciary?

No, the point is that “acting jointly” means that his party leader, or at least the representative of the largest unionist party within the Assembly, the DUP, would have a veto on the appointment by a single Minister. It increases cross-community confidence in the appointment of our judiciary. The words “acting jointly”—the First Minister and Deputy First Minister—are key, and that should remain the way in which the chief members of our judiciary are appointed. That was the point that I was making.

Deadlock is the notion that comes more readily to my mind in those issues, but, again, who knows what the future will hold? The Deputy First Minister might well be the hon. Member for Foyle rather than his counterpart in Mid-Ulster. He is certainly making a fist of it. The Ulster Unionist party has tried to position itself in relation to the DUP, looking to the left and to the right wondering which way to go, and has dithered, doddled and fallen as a result. The hon. Gentleman has looked at his party’s position in relation to Sinn Fein and decided that he wants to be more extreme than Sinn Fein. It is a hard act to follow, but he is attempting to do it. Who knows what will happen within the nationalist community, what the elections will show in that regard, and the implications not just for this legislation, but for the Assembly itself?

I want to turn to the triple lock, where some of the confusion seems to arise. The DUP negotiated the triple lock mechanism some years ago, and it is a sensible piece of legislation. It ensures that the First Minister must approve the devolution of powers before the matter gets to the Assembly, that the Assembly must approve the devolution of powers by a majority of both designations, and that this House must approve the devolution of powers. The Minister has made it abundantly clear that there will be no devolution of policing and justice unless the Assembly asks for the powers to be devolved.

Is not the truth that powers cannot be imposed on an Assembly that does not want them and that is not prepared to work with them?

My hon. Friend is right. That is the key issue. My hon. Friend may not be pleased to know that in making that statement she is in the company of the Secretary of State for Northern Ireland, who has made it clear that even if he had a mind to impose on the Assembly the devolution of those powers, and even if he had a mind to impose a Minister on the Assembly, those powers could not be worked if the Assembly did not want them and was not prepared to work them. That is realpolitik.

The hon. Gentleman is right. The point is covered by proposed new subsection (7A)(c), which states that the Assembly must still elect the Minister and the deputy Minister. New clause 5 gives the Secretary of State the power to override the Assembly in setting up the Department. The hon. Gentleman may be happy with that, but I am not.

I agree that new clause 5 gives the Secretary of State the power to set up the Department. However, it does not give the Secretary of State the power to devolve policing and justice powers to that Department. There may be a shell of a Department, but it cannot do anything until the powers are devolved to it.

I hope that I have made my understanding of the legislation very clear. If I have erred on a particular issue, I am sure that the Minister will put me right.

I disagree with the hon. Gentleman. How does he interpret proposed new subsection (7B):

“The draft of an Order laid before Parliament under subsection (7A) may contain supplementary, incidental, consequential, transitional or saving provision”?

Surely that gives the Secretary of State wide latitude to do just about whatever he wants. We are not talking about the current Secretary of State for Northern Ireland and the current circumstances and political geography of Northern Ireland; we are discussing any future circumstance where, out of expedience, a Secretary of State for Northern Ireland might do a side deal to devolve policing without, for example, DUP support.

The hon. Gentleman will have recognised the words that he has quoted—I have been in this House for some 28 years, and I have seen them dozens of times. The Secretary of State cannot use the powers in the Bill to take powers that go well beyond the scope of the legislation. The hon. Gentleman is arguing that the consequential powers allow the Secretary of State to do whatever he wants, provided that it falls loosely under the heading of policing and justice. Of course, the Secretary of State cannot do that, and the approach must be consistent with the scope of the legislation.

Surely that will depend on what the Secretary of State puts in the order, which, as the hon. Gentleman knows, is not amendable. Such an order would go through, because the Government have a majority. Proposed new subsection (7A)(b)

“provides that the purpose of the department is to exercise functions consisting wholly or mainly of devolved policing and justice functions”.

Uncharacteristically, the hon. Gentleman is prepared to extend a little bit more trust to the Government than me.

I do not need to extend trust, because ultimately the Assembly is able, as is the First Minister, to exercise the power to ensure that the powers are not devolved. I agree that it is a bit nonsensical for the Government to have the power to set up a Department if powers are not to be devolved to it. The Minister’s rationale is that he would not be exercising those powers unless it was expected that, by doing so, he was assisting the process towards setting up a policing and justice Department that would have powers devolved to it. That would be the sensible exercise of his power. However, it is not for me to argue the Government’s case—that is up to the Minister. I am giving him the benefit of my view of what the legislation says; if I am wrong, he will put me right at the end of the debate.

The reality is that the triple lock—it has also been described as a quadruple lock— is now firmly in place, so the powers cannot be devolved, unless, of course, the Government were to come back to this House with primary legislation, as they always can. [Interruption.] The hon. Member for Foyle would encourage them to do so—although he has never explained to the House how policing and justice powers that were to be imposed on an Assembly could ever be exercised in defiance of it. With cross-community voting, it simply would not work. That is a further protection for the Assembly even beyond the triple lock mechanism. The triple lock mechanism is a sensible provision to have and I am glad that the Bill does not interfere with it. It is a vital element in providing confidence not only to the Unionist community, but to the community in Northern Ireland generally.

I mentioned the DUP’s attempt to help the Government to get round the difficulty of there being a section of the Assembly in which people would not have confidence as regards the devolution of powers. We have to recognise that there will be individuals who will not gain the support of both sections of the community. I am therefore surprised that the model that the Government provide in the Bill is deficient in several ways. I agree with the hon. Member for Foyle that the Minister has made no case for why this Department should have a deputy Minister. I do not understand the Government’s logic in that regard.

The hon. Member for Montgomeryshire brought up the question of the distinction between a junior Minister and a deputy Minister. To defend himself against that argument, the Minister prayed in aid the fact that there is a First Minister and a Deputy First Minister. That was not a good analogy to draw because, first, they are jointly elected in the sense of its being a joint office; secondly, they have the same joint control of that office; and thirdly, they are both in the Executive. The distinction between those Ministers and a junior Minister was drawn to show that junior Ministers were under the control of the Minister of any Department and therefore subservient. In bringing the status of deputy to the policing and justice Department, the Minister seems to be saying, “This person is slightly more than the junior Minister”, but he has ended up confusing him with someone who has a joint office.

I am not sure that the term, “deputy”, is helpful, not least because there is no need for such an individual in the first place. The SDLP argued strongly in the Preparation for Government Committee that many of the policing and justice powers are already devolved, and there is some truth in that. Many policing powers are devolved to the Policing Board and to other bodies, and that applies to justice powers as well. So, we are left with a residue of policing and justice powers, with which any sane individual could amply cope alone, without a deputy or junior Minister. The need for the post does not exist.

I respectfully point out that I fully expect the Alliance party to be the largest party in the Assembly after the elections. [Laughter.] I can hear from DUP Members’ response that they are frit.

The new clause states:

“The Act may provide… for the department to be in the charge of a Northern Ireland Minister elected by the Assembly; and… for that Minister to be supported by a deputy Minister elected by the Assembly.”

Does the hon. Gentleman claim that that provision would be governed by the majority requirements that he highlighted? I am willing to accept his comments if that is the case—perhaps he could clarify that. However, he fails to grasp the fundamental point that any consequential changes could be made under the new clause, and there is no guarantee that the condition that he described would be respected.

Such are the hon. Gentleman’s expectations that I am sure that he expects no rain in Northern Ireland in February and March. I suspect that his expectations will not be realised. Indeed, the Alliance party may not even get its leader returned under current circumstances. However, the hon. Gentleman must acknowledge that it is inherently unfair for a party to be excluded when one of its members could gain cross-community support and be a potential candidate for a post. I defend that position—I obviously do it much more vigorously than the hon. Gentleman.

I am glad that the hon. Gentleman has raised the matter. Clearly, he agrees with me that for the Government to insist—as they do in relation to the triple lock—that the model and who fills the posts must be for the Assembly to determine, but restrict the Assembly’s choice through the new clause, is indefensible.

I do not accept that there should be the two positions, as I think that the Assembly should be free to choose any Assembly Member whom it believes can command the necessary degree of support in order to have policing and justice powers devolved. The provision unnecessarily limits the scope of the choice available and discriminates against the Alliance party—a party that believes in freedom and does not believe in discrimination. The Government, who so often lecture us about those matters, should be ashamed of themselves. Indeed, I have to say that my party argued that the Alliance party should have membership even of the Sub-group on programme for government. We may not have been as expectant as the hon. Member for Montgomeryshire about the number of Alliance party members that would be returned in an election, but we believe that the potential is still there, so we should not take the electorate for granted on any of these matters. The Alliance party should have been included in the Sub-group—and we said so.

In order to move on to debate other matters, I would like to conclude my remarks by saying that we are not getting excited about this piece of legislation because we all recognise that even though it is deficient, it will not be the last word on the issue. The safeguards that my community needs are in place. I believe that the House will be asked to return to this matter and will no doubt be required to legislate further on it in future, but we make it clear now that we want policing and justice powers devolved at the right time and in the right circumstances.

We have had a very long debate on the new clause—and deservedly so, as it is extremely important. I go back to the Minister’s words when he first proposed the legislation some time ago. He mentioned the historic decision of the ard fheis of Sinn Fein to support policing, but it is only right—for the reasons provided by the hon. Member for Belfast, East (Mr. Robinson)—not to agree to devolve policing and justice just yet. We want to see what Sinn Fein means by support for the police. The speech of Mr. Adams was littered with the words suggesting that this was the way to the “the united Ireland” that he desired. Perhaps we should see whether the murderers of Mr. McCartney or the perpetrators of the Northern bank robbery are handed over. It remains the police’s view that that robbery was carried out by the IRA, so the IRA has a long way to go to prove that it means what it says, but we have to accept that it is a step forward.

I am rather concerned about new clause 5. I spoke briefly to the Minister about it earlier, and I am grateful to him for his time. Having looked into it in rather more detail, I remain concerned. I very rarely disagree with the hon. Member for Belfast, East on these issues. He will remember that in 1998, I was one of the very few Members to join him in the Lobby and he knows exactly where I am coming from on this. However, I really think that that new clause weakens the triple lock, although it does not remove it completely.

Subsection (5)(c)

“provides for the department to be in the charge of a Northern Ireland Minister elected by the Assembly and for that Minister to be supported by a deputy Minister elected by the Assembly”—

and those elections will require cross-community support. I accept that the new Department cannot be up and running, but it seems very clear indeed that the Department can be set up if, according to the new clause,

“it appears to the Secretary of State that there is no reasonable prospect that the Assembly will pass an Act of the kind described in subsection (1)(a) and (b)”.

In that case, the Secretary of State

“may lay before Parliament the draft of an Order in Council”.

Subsections (1)(a) and (b) are effectively action to set up the Department. It is very clear to me that the Secretary of State can assume the power to override non-action by the Assembly and then to set up the Department.

I am sorry that I cannot agree with the hon. Member for Montgomeryshire (Lembit Öpik) on this, but I remain very concerned. The Minister said earlier that he would come back to me on what I accept is a very complicated matter. He is always very willing to discuss these matters, so I take it that he will be happy to meet me for a discussion before the Bill reaches the other place. As I say, it is a matter of great concern to me.

As ever, I would be happy to meet the hon. Gentleman to discuss the matter, because we have a reasonable relationship. However, I emphasise the point made by the hon. Member for Belfast, East (Mr. Robinson) that, although the Department can be set up by the Secretary of State, the triple lock is in place to ensure that no devolution can occur until previous legislative commitments of the House are satisfied.

I do not know whether the triple lock is in place with regard to the First and Deputy First Minister. It is in place with regard to the election of the Justice Minister and the deputy Minister, but the triple lock is not otherwise in place. We have talked about triple locks and quadruple locks, but it seems that we have now come down to a single lock. That might be sufficient, but this is getting a bit complicated.

I do not want to take up any more of the House’s time on this issue, which we have aired at length. We cannot come to an agreement on it, but I am grateful to the Minister for his offer to discuss the matter later. He is always accessible and willing to meet to discuss any issues, and I will be happy to take him up on that offer, because I am not satisfied. Indeed, the debate has changed as it has gone along. It has been a long debate, and what we are saying now is not quite what we were saying at the beginning. So I will seek to have that meeting with him before the Bill makes any progress in another place.

New clause 4, tabled by the hon. Member for Foyle (Mark Durkan), relates to intelligence gathering. We are happy to support the Government on the transfer of responsibility for intelligence gathering to MI5. Having said that, I remain a little concerned about the accountability of the security services, as I said to the hon. Member for Foyle in Committee. I have also told him that I remain concerned about the events leading up to Omagh, a matter that I have looked into. I share his concern about that, but I do not think that his new clause is the right way to go, although it raises some important issues. We remain convinced that we should transfer responsibility for intelligence gathering to MI5. I shall not seek to divide the House on new clause 5, but I reserve the right to reconsider the matter later.

There has been a tendency for Northern Ireland laws and regulations to be rushed through this House. It therefore strikes me as strange that we sat discussing the Bill for many days in Committee, yet this matter was not presented to us at that stage so that we could discuss it. If the Minister’s argument is that this is just a model that might be imposed some time in the future, would not it be better to debate it some time in the future, when we know what the situation in Northern Ireland will be?

Order. Has the hon. Gentleman finished his speech?

I am giving way to the hon. Member for Montgomeryshire (Lembit Öpik).

In that case, it would be helpful if the hon. Gentleman could indicate that.

The hon. Gentleman took me by surprise as well. Does he agree that, if the Minister’s assurances are valid, there is no point in having this provision in the new clause? The only logical reason for having it is to do more than simply set up an impotent shell.

I entirely agree with the hon. Gentleman. The House would like to know the reason for the Government’s introducing the new clause.

I should like to follow on from the issue that the hon. Member for Wellingborough (Mr. Bone) has drawn to our attention. My hon. Friend the Member for Belfast, East (Mr. Robinson) has also raised the issue, in asking why there was so much haste in bringing the new clause before the House today. The matter was not debated in Committee, but it is nevertheless an important part of the debate this evening. The Minister would do a great service to the House by withdrawing the new clause, to allow the matter to be debated, to be brought before the House again and before the Committee to receive proper scrutiny. There would then be a clear understanding of the matter.

My hon. Friend the Member for Belfast, East has tried to clarify our understanding of what the Minister is saying. The Minister has likewise tried a number of times to explain the issue, although he was very hesitant at the beginning, which perhaps lent weight to the suspicion in some people’s minds that there was something untoward involved. Whenever he was asked about it, the Minister did not give a clear answer and it had to be dragged out of him—it was like pulling teeth. He has done us a disservice, although I know that he did not do so intentionally. Nevertheless, he should withdraw the motion and new clause, and allow a proper decision process to take place. It is clear that the measure will not be put into effect immediately, and there is time for proper scrutiny and for him to have regard to due process. That is my request.

I will begin on a positive note by telling the hon. Member for South Antrim (Dr. McCrea) that I will not withdraw new clause 5. I do not wish to disappoint him, but I think that it serves a purpose.

The new clause constitutes part of the general discussion of the Government’s wish to ensure that policing and criminal justice are devolved by May 2008. As today’s debate has made clear, some Members and parties are sceptical about that, but the discussion of the triple lock is relevant because the triple lock is a consequence of earlier legislation and earlier Government commitments.

As I said in my opening remarks, new clause 5 has a purpose, which is to provide an extra model for the Assembly to consider. The hon. Member for Wellingborough (Mr. Bone) asked why the new clause had not been tabled in Committee. The simple answer is that we were waiting for the Committee on Preparation for Government in the Assembly to complete its deliberations on the potential models. The Committee stage in the House of Commons was completed very quickly—as a result, my hon. Friend the Under-Secretary of State tells me, of co-operation and discussion—and the Committee on Preparation for Government deliberated after our Committee stage had ended.

New clause 5 is another option for the Assembly to consider when it considers the potential for devolution of criminal justice and policing matters. The triple lock applies. If the Assembly does not wish to support the devolution and the First and Deputy First Minister do not wish to promote it to the Assembly, it will be almost impossible politically, let alone legislatively, for the Secretary of State to impose it on the Assembly. I assure Members that that is not the Government’s wish or intention.

I listened carefully to the Minister’s introductory remarks. He assured us that this was merely an additional model. Will he also assure us, to satisfy our curiosity, that new clause 5 was not discussed with Sinn Fein and not with other parties in the House? And if this is merely an additional model, why on earth are we introducing it at all?

The Government wish to introduce additional models for the House to consider, and to give the Assembly scope to come up with another potential model if it so wishes. The Government have said that if the Assembly finds itself in difficulty only on the question of which model to approve, they will impose this model as a last resort. The model has been discussed with a number of organisations and individuals as part of the general discussions that take place in Government, and this is our best guess.

I emphasise to the hon. Lady that the question for Members is whether they wish the clause to be added to the Bill to ensure that the Assembly can consider another potential model, along with those in earlier legislation, so that if there is a consensus in favour of this model the Assembly can adopt it. If there is no such consensus, and if the Assembly wishes to choose another model, it is free to do so. If there is no consensus at all, the Government will impose this model in due course.

May I respond to the hon. Lady’s point about the lack of consultation? Her party was consulted when the Secretary of State put the model to the policing and justice sub-committee of the Committee on Preparation for Government.

We have had discussions with a number of parties, and the Secretary of State has made his view clear. The new clause would give legislative effect to an additional model. As I have said throughout, it does not have to be adopted by the Assembly; it can choose another model. If it cannot reach a conclusion, the Government will seek to impose this model for the reasons that I have given today.

This measure does not only address the possibility of the Assembly getting stuck over choosing a model. It allows the Secretary of State to set up the Department in the first place. That is the problem; the measure is not only about the model. It gives the Secretary of State the power to set up the Department if the Assembly does not pass the Act to set it up.

That point has been made by a number of Members, and although I was going to come on to it later, I might as well do so now.

The establishment of the Department does not mean—I think that the hon. Member for Belfast, East (Mr. Robinson) concurs with this point—that the transfer of legislative competence to the Assembly occurs. That is a separate matter under legislation that the Secretary of State must introduce. [Interruption.] Yes, but the situation will be examined and the order undertaken only when the triple-lock procedure has been followed.

The Minister has still not explained why the Government are producing more vacuous models, at a rate that Hugh Hefner would envy. Are the Government not proposing this new model so that at the same time as they are giving assurances to the DUP and its supporters that the triple lock still stands, they are giving Sinn Fein and its supporters the impression that they are acting on the Secretary of State’s paper issued over the Christmas break, which suggested that the Government will take all necessary steps to ensure devolution of justice and policing by May 2008? Is not the answer to the question of who will blink next that the Government are winking at both parties?

The Government are clear that we want devolution of criminal justice and policing matters by May 2008. That is the Government’s intention, but it is predicated on the facts that the First Minister and the Deputy First Minister must propose that devolution, the Assembly must accept it on a cross-community vote, and the Government must, through the House of Commons, support it in practice.

There is a power to establish the Department, but, as I have said, that does not mean that transfer of devolution functions or legislative competence to the Assembly will occur. The Secretary of State may at some point in the future judge that it is of value to allow the Assembly to select Ministers in shadow form to oversee the transfer of functions. Subsection (5) does not create a real, functioning Department; rather, it creates the legal premise for there to be a future Department, allowing the Assembly the opportunity to elect shadow Ministers if the Assembly wishes. That is the key point, and I think that the hon. Members for Belfast, North (Mr. Dodds) and for Belfast, East understand it. The triple lock is maintained. The Government want devolution, but we are creating an extra model that can, if the Secretary of State wishes, be established in shadow form, if the Assembly wishes to elect Ministers to it.

I understand what the Minister says is the intent of the Bill, but will he answer the following question? Is it theoretically possible for a Secretary of State for Northern Ireland to use the powers in the new clause to establish a functioning Department if the Assembly does not support that or if it has major doubts about it?

No, it is not the intention—nor is the power available to the Government—to do that. Under the proposed legislation, the Government can establish a Department. That does not mean that the devolution of functions will occur, nor that the transfer will occur. They are subject to legislation that we have discussed previously in the House.

I recognise that there has been considerable discussion about the issue we are focusing on. I have offered to meet the hon. Member for Tewkesbury (Mr. Robertson) to take him through it, but we have been very clear about our position. If Members wish to force a Division, so be it, but I have been clear about where we stand.

The hon. Member for Montgomeryshire (Lembit Öpik) mentioned concerns about cross-border co-operation on criminal justice matters. None of the actions or measures that we have discussed would diminish the fight against crime. The Organised Crime Task Force meets and its members come from Government Departments, the Police Service of Northern Ireland and the Policing Board. The Under-Secretary of State for Northern Ireland, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins) chairs that meeting. There will be continuing discussion with the OCTF stakeholder group, and strategic co-operation on a north-south basis on crime issues will continue, too—as it should do.

The hon. Member for Montgomeryshire and other Members made points about the title of deputy Minister for justice that is used in the new clause. Let me make an open admission: my initial response that there is a First Minister and a Deputy First Minister might not have been a particularly helpful contribution in terms of clarifying matters, but when people are thinking on their feet, occasionally the first thought that comes into their mind is the one that is expressed, and that was the first thought that came into my mind.

The point that we need to make is that there is a clear distinction between the two roles of justice Minister and deputy justice Minister. As I mentioned in my opening remarks, the justice Minister will sit in the Executive, and the deputy will not but can be invited to do so. The precise role of the deputy is a matter for the justice Minister to decide in conjunction with the First and Deputy First Ministers. The justice Minister role will be well understood. The deputy’s role will be open for discussion; like my role as Minister of State to the Secretary of State, its responsibilities will be subject to discussion between Ministers.

We have made a technical distinction between the terms junior Minister and deputy Minister. We wish to ensure that there is sufficient status for a post that has the important role of backing up the justice Minister. If the Assembly were to choose this model, the name is open to discussion; I am not tied to the title as that is not a big issue. The simple fact is that the model under discussion provides for a deputy.

The deputy post is time limited. My hon. Friend the Member for Foyle (Mark Durkan) said that the Assembly would be stuck with a deputy post, but the post will be for a three-year period; it can disappear if the Assembly so wishes. I hope that that provides some reassurance to Members.

I am grateful for the Minister’s clarification, although I still suspect that the distinction between junior and deputy is random.

On a different point, a good and loyal friend of the Alliance party for Northern Ireland highlighted what is—now that it has been pointed out—an obvious fact: the people who take up such posts must come from the largest and second largest political parties. In fairness to the hon. Member for Belfast, East (Mr. Robinson), he made a valid point in respect of the possibility of finding suitable tenants for such posts from other parties. Why have representatives of other parties been excluded? I ask that because, as this is a new clause, we have not had an opportunity to table amendments to it.

We have had a long discussion on this matter, and the hon. Gentleman raises those points at a late stage. We have accepted the d’Hondt terms. That is how the justice Minister will be chosen, and the deputy Minister will be chosen under different means. If the Alliance party does as well in the election as the hon. Gentleman wishes, it might in due course be in a position to bid for some of these posts. I think that it currently has six Assembly Members. I do not know how many the Northern Ireland electorate will deliver to it on 7 March—the figure might be more than six, or fewer—so the Alliance might be able to provide a candidate to fill one of the positions in due course.

I commend new clause 5 to the House.

Is the real answer to the question of the hon. Member for Montgomeryshire (Lembit Öpik) not to be found in the point made by the hon. Member for Belfast, East (Mr. Robinson)—that the DUP would not vote in the Assembly to allow Sinn Fein to enter a justice Ministry? If Sinn Fein negotiated the option of a Minister and deputy Minister with the British Government, it would clearly want to make sure that the SDLP was forced into that Ministry in one form or another, despite our misgivings about the future role of MI5 and the implications of that in terms of the position in which devolved Ministers might find themselves. Sinn Fein is trying to rule out any option except having the SDLP stuck in there, presumably with the Ulster Unionist party. That is what the Government are providing for.

For the purposes of clarification, I repeat: this is a simple option for consideration by the Assembly, and it can choose another one. Yes, we will impose it, because it has merit across the board, and there will be an opportunity to consider it, but the point is that it is an option, and if the Assembly as a whole does not wish to pursue it, it can choose another option for devolution.

I commend new clause 5 to the House because it achieves the objective of giving a wider choice to the Assembly, and provides an opportunity to maintain the purposes of the triple lock, which we have discussed on many occasions. It will help to progress devolution in the event of failure—if the Assembly cannot achieve a resolution of the potential models for the future.

I want to touch briefly on the new clauses tabled by my hon. Friend the Member for Foyle, who raised concerns about national security, which I tried to address in my opening remarks. In our discussions with the Police Service of Northern Ireland, the Chief Constable has been supportive of this change in national security primacy. He also said that five key principles must be met in order to secure his support. The Government accept that and we will ensure that effect be given to those five key principles. For the sake of the House as a whole, I point out that the Chief Constable wants to ensure that all Security Service intelligence relating to terrorism in Northern Ireland is visible to the PSNI, and I agree with that premise, as do the Government. He wants to ensure that the PSNI will be informed of all Security Service counter-terrorist investigations and operations in Northern Ireland, and we agree with that. We also agree with the Chief Constable that Security Service intelligence should be disseminated within the PSNI according to the current PSNI dissemination policy, and using police procedures.

My hon. Friend the Member for Foyle also raised the question of PSNI officers continuing to deal with the great majority of national security issues in Northern Ireland under existing police handling protocols. There will be no diminution of the PSNI’s ability to comply with the Human Rights Act 1998 or the Policing Board’s ability to monitor said compliance. From my perspective and in view of the Chief Constable’s support, our approach makes sense. The Chief Constable has laid down conditions, but essentially there is support for transferring such intelligence matters to the security services. I am afraid that I therefore have to reject new clauses 2 and 4, tabled by my hon. Friend, and I urge the House to do the same and to support new clause 5.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

Clause 1

Issue of certificate

I beg to move amendment No. 32, page 1, line 12, leave out from ‘that’ to end of line 16 and insert

‘the defendant is, or is an associate (see subsection (10)) of, a person who—

(a) is a member of a proscribed organisation (see subsection (11)), or

(b) has at any time been a member of an organisation that was, at that time, a proscribed organisation.’.

With this it will be convenient to discuss Government amendments Nos. 33 to 35.

This group of amendments may turn out to generate a rather less stimulating debate than the previous one, and—who knows?—perhaps a shorter one, dealing as it does with a number of technical but necessary amendments.

Amendments Nos. 32, 33 and 34 deal with drafting and amend the definition of “proscribed organisation” in the Bill. Clause 1(9) currently defines a proscribed organisation in relation to membership only. That is fine for condition 1, which covers membership, but not for conditions 2 and 3, which refer to offences committed or actions carried out on behalf of a proscribed organisation. Having considered this issue very carefully, we feel that there is a small risk—I emphasise that it is small—that a defendant might use that slight ambiguity to challenge a certificate that has been issued, simply on the ground that they are not a member of a proscribed organisation. These amendments therefore clarify the situation regarding a potential very small loophole in the legislation.

I beg to move amendment No. 9, page 2, line 29, leave out paragraphs (d) and (e) and insert—

‘(d) there is evidence of a significant relationship between A and B.’.

First, I congratulate the Minister on getting two amendments passed in three minutes. Perhaps his colleague the hon. Member for Delyn (Mr. Hanson) could learn from his persuasive powers and his ability to scotch all dissent; that was very impressive.

Amendment No. 9 returns us to an issue that we raised in Committee. We believe that the term “associate” is too broad and should be tightened. How do we determine whether a person is a “friend” or “relative” of another person? These terms are extremely subjective. Two people could be cousins, but they might not have seen each other since childhood. Should a trial be conducted without a jury in such circumstances? Have the terms “friend” or “relative” been used in other legislation in the context of a matter as serious as permitting non-jury trial?

In response to our amendments in Committee, the Minister said that paragraphs (d) and (e) were intended to fill a gap in the explanation of the term “associate”. That is great, but in order to help the Government, we have clarified the position exactly as the Minister intended, taken on board his concern and proposed the wording in amendment No. 9. Its wording remains subjective—the Director of Public Prosecutions will still have to decide whether a relationship is “significant”—but “significant relationship” is a tighter phrase than “friend”. The DPP will also need to have evidence that such a relationship exists.

This is one occasion when we hope that the Minister will accept that our amendment is true to the principle that he himself outlined, and we look forward to his response.

The hon. Gentleman is of course correct—we did discuss this issue in Committee, and he has come back with another valiant attempt. I have considered very carefully his amendment and the arguments that he has put forward. We have said throughout consideration of the Bill that we need to define “associate” in order to cover cases where an individual might be motivated by their close relationship with another person, and the Bill specifies, for example, the relationship of husband and wife.

The example we discussed in Committee was that of a father and son. Say the father was a prominent member of a proscribed organisation and his son was prosecuted for a certain offence. Evidence could be produced that the father intended to bully the jurors to get the son off. We need to ensure that the legislation covers such examples, and I know that the hon. Gentleman accepts that.

I accepted in Committee that the terms “friend” and “relative” could indicate a close relationship, but they could also reflect a more distant relationship. I contend that we should leave it to the DPP to make a judgment about what is relevant in any given case. To some extent it is a subjective test. We trust the DPP to make the judgment.

The amendment would, at best, simply replicate the provision in the Bill in clause 1(10)(d) and (e). At worst, instead of tightening the definition as the hon. Gentleman intends, it might widen it. I assume that he would not want that.

The Minister might recall that when we discussed the issue in Committee we were not sure whether a person might be deemed to be an associate of someone who had been a member of a proscribed organisation in the past if one was, for example, First Minister and the other was Deputy First Minister. Would not the amendment definitely have that effect, because “significant relationship” could include a significant working relationship? It would extend the scope of the provision in exactly the way that the Minister suggests.

I was not often able to say as much in Committee, but I am grateful for the support of my hon. Friend the Member for Foyle (Mark Durkan). The amendment could indeed widen the scope of the clause. In a particular case, the fact that someone is somebody else’s cousin may be relevant, but it may not be relevant, and it is up to the DPP to make a judgment.

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I will happily give way to an assiduous attender of Committee, if not of this afternoon’s debate.

Will the Minister accept that it is not only that a relationship has to be established? The second condition suggests that that relationship must be such that there is a danger of jury tampering or an attempt to interfere with the administration of justice.

I am grateful to the hon. Gentleman for making the point that was to be my final point. He is right that the amendment relates to the first part of the test. The second limb of the test specifies that there has to be a risk that the administration of justice might be impaired. Both elements have to be fulfilled for the DPP to be able to issue a certificate.

The hon. Member for South Antrim (Dr. McCrea) earlier mentioned a part of the debate that was like pulling teeth. I regard my relationship with my dentist as significant, but I would not expect that relationship to be covered by the Bill. We would do best to leave the definition of “friend” and “relative” as set out in the Bill, and I ask the hon. Member for Montgomeryshire (Lembit Öpik) to withdraw his amendment.

Let us take the Minister’s example. Suppose that he was sitting in the dentist’s chair, and the dentist said, “Oh, incidentally, I’m going to be in court tomorrow and I wondered if you could do me a favour.” If the Minister had not yet had his treatment, he would be likely to give the dentist the support that he sought.

An arbitrary list of relationships, such as friend or relative, is missing the point. The only point is whether the relationship is significant in the context of the legislation. The hon. Member for Foyle (Mark Durkan) made an interesting intervention, but he underlined the reason we tabled the amendment. I suggest that the problem is that the Bill misses the point. The DPP still has to decide whether the relationship is significant in the context of the Bill, but as it is drafted he does not have to consider whether the relationship is significant under the rules. If two people are friends or relatives, that is enough to trigger the provision.

I shall try to be helpful to the hon. Gentleman, as I was earlier to the Minister. Does he agree that we need to remember that the DPP will make the judgment on the basis of information that no one else will see and will come to conclusions that no one else will know about? None of that information will be declared on the certificate or anywhere else.

The hon. Gentleman and others have made the point that the process could not be less transparent. It is so covered with a cloak of secrecy that it is hard to see how the decision could be contested by those affected by it.

I return to the point that I emphasised in my contribution, as did the hon. Member for Foyle. Just establishing that someone is a friend or relative is not sufficient to trigger the certificate. It may be relevant to satisfy part one of the test, but there also has to be a risk of an impairment to the administration of justice. Both conditions have to apply, which makes it a very serious test. A judgment needs to be applied by the DPP in relation to a friend or relative, but a wider judgment must be made about the administration of justice.

I understand the Minister’s efforts to define the process in a different way, but I suggest that accepting the amendment would be the most effective way to achieve that goal. The Minister has turned his face against such common sense, however, and not for the first time the pearls of wisdom that are offered, gratis and pro bono, to the Government are rejected. I lament the Minister’s unwillingness to accept an amendment based on the spirit of the words that he used in Committee—but it is not our intention to divide the House. It is the Minister’s loss, not ours, that I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 34, page 2, line 30, at end insert—

‘(11) For the purposes of this section an organisation is a proscribed organisation, in relation to any time, if at that time—

(a) it is (or was) proscribed (within the meaning given by section 11(4) of the Terrorism Act 2000 (c. 11)), and

(b) its activities are (or were) connected with the affairs of Northern Ireland.’.—[Paul Goggins.]

I beg to move amendment No. 5, page 2, line 30, at end insert—

‘(11) Where a certificate has been issued under subsection (2), the judge conducting the trial may—

(a) accept the certificate, or

(b) reject the certificate.

(12) When considering the issuing of a certificate under subsection (11), the judge shall take into account any written representations he may receive from the defendant.

(13) If the judge conducting the trial—

(a) accepts the certificate, the trial shall be conducted in accordance with the provisions of this Part;

(b) rejects the certificate, the trial shall be conducted with a jury and the provisions of this Part shall not apply.

(14) In cases where a certificate has been rejected in accordance with subsection (11)(b), the judge conducting the trial shall provide, in writing, his reasons for the rejection to the Director of Public Prosecutions for Northern Ireland.

(15) The Director of Public Prosecutions for Northern Ireland may publish the reasons provided under subsection (14).’.

With this it will be convenient to discuss the following:

Amendment No. 15, page 5, line 24, leave out Clause 7.

Government amendments Nos. 29 to 31.

Amendment No. 5 would allow the final decision about whether a trial is to proceed in front of a jury or in front of a judge to be taken by the judge, not by the DPP as the Bill provides. In Committee we tabled amendments to ensure that the decision to issue a certificate for a non-jury trial would be taken by a court, not by the DPP. The Government’s response was that the DPP would be privy to information that the police or national security had brought to bear, and that having an open judicial system would risk information being exposed to the other party, so as to allow for cross-examination, and that could put witnesses or informants at risk.

Our preference is for some form of judicial control over the mode of trial. The decision should not be taken by the DPP on his or her own. However, we have taken the Government’s concerns into account and have therefore tabled amendment No. 5 to allow the final decision to be taken by the judge. The procedure would be for the DPP to make the initial certificate of application for a trial without a jury. Under the Bill, that has to be lodged with the court before the arraignment.

The defendant would then be notified that such a certificate had been issued by the DPP, and he would have the opportunity to make written representations to the judge. On the basis of the representations made by the DPP and the defendant, the judge would be able to decide to accept or reject the certificate from the DPP. That would allow a judicial element to come into the determination of the mode of trial, yet there would be no risk of the names of witnesses or informers becoming known. As a result, they would not be subject to intimidation, and I think that that answers the Government’s objections to the proposal.

We are now dealing with one of the most draconian elements in the Bill, and I support what the hon. Member for Argyll and Bute (Mr. Reid) said about amendment No. 15. It would remove clause 7, which prevents any legal challenge whatsoever to the DPP’s decision to issue a certificate to the effect that a defendant should be tried without a jury.

The Bill, unlike the Criminal Justice Act 2003, will not require the DPP to apply in court to have a case tried without a jury, but clause 7 goes further. It allows the DPP alone to decide that a trial should be held without a jury, and it also provides that that decision cannot be challenged by judicial review. That runs contrary to the terms of the Government’s consultation paper for the Bill, in which it was stated that, like other administrative decisions, the DPP’s decision would be judicially reviewable.

That is what the public were told, and what the Government believed was a reasonable and proper administrative model for the provision of non-jury trials. However, the Bill is entirely different. It also runs counter to the recommendations that the Government received from Lord Carlile, who believed that, although the Bill should contain some provisions for non-jury trials, the decision by the DPP should be judicially reviewable.

There are two lessons for those of us who are told that Lord Carlile will be a great reassurance in these matters, as he will be the one reviewing the future role of MI5. First, those of us who do not agree with non-jury trials can question Lord Carlile’s judgment in this matter; and secondly, it is clear that the Government have overturned one of his key conditions—that the DPP’s decision should be judicially reviewable. For both those reasons, therefore, we find it difficult to accept that Lord Carlile will be able to reassure us about the conduct of MI5.

In Committee, the Government said that they were merely trying to use clause 7 to reproduce the result of the Shuker case, when it was stated that courts should be “reluctant to intrude” on any decision made by the DPP to deschedule. This Bill gives the DPP the unchallengeable power to issue a certificate to the effect that a trial should not have a jury. That decision cannot be challenged in court, or even questioned by the court itself. The Secretary of State said in the Second Reading debate of 13 December that a judge might ask the DPP privately about the matter, but that seems rather unusual.

The Government say that clause 7 is intended to deal with the lessons of the Shuker case, but we believe that it goes much further than that. The Shuker case established that courts should be “reluctant to intrude” on the DPP’s decision in respect of non-jury trials, so why are the Government legislating to prevent them even from looking in at the door or the window? Government amendments Nos. 29 to 31 represent a slight movement in that respect, allowing the courts to step in when there is bad faith or “other exceptional circumstances”.

However, in circumstances when, as the Minister told us in Committee, there is no information on the certificate—so we shall not know which conditions the DPP felt were satisfied and neither the defendant nor the lawyer will know the grounds on which it was issued—it is hard to know how we could mount a challenge on grounds of dishonesty, bad faith or an error in law. It would be impossible for anyone to mount a significant challenge when no information was given. The change that the Government appear to offer in their amendments is a mere figment.

The Government’s proposals do not go anywhere near far enough. They do not deal with the point made by the hon. Member for Argyll and Bute because they do nothing to mitigate the effect of subsection (3) of clause 7, which derogates from the Human Rights Act and thus from the European convention on human rights. It abandons the basic standards of decency that have been meant to apply throughout Europe for more than 50 years.

It is extraordinary that the Government are doing that in Northern Ireland, when the security situation is improving dramatically. Earlier, Opposition Members said that we needed to look to the future and to take account of al-Qaeda and wider terrorist threats, but they should remember that the Bill’s provisions apply only to proscribed organisations dealing with the affairs of Northern Ireland; they will not extend to al-Qaeda or anyone else. The Government keep telling us how things are improving in Northern Ireland and that there is such great confidence that the previous special provisions are being repealed, so how can they justify such provisions in the Bill? That is why I am proud to argue that clause 7 should be deleted.

I have followed the hon. Gentleman’s argument closely, although I think that it would have been more persuasive if he had studied the Government’s amendments, as the issues that he has just raised have been withdrawn. That apart, if the DPP issues a certificate because one of the four conditions is satisfied and there is a risk to the administration of justice, and even though the certificate cannot be challenged on grounds of bad faith, dishonesty or other exceptional circumstances, has the SDLP no confidence that the Northern Ireland judiciary would give the defendant a fair trial? I certainly do not share that lack of confidence in the judiciary.

It is not the SDLP that is trying to restrict the role of a judge, but the legislation. The Bill would restrict the right of a judge even to question the issue of a certificate. It would ensure that the certificate could not be challenged or even questioned in court or by the court. Will the hon. Lady take this opportunity to tell me how a defendant or their lawyer can mount a judicial review on grounds of dishonesty, bad faith or error in law when the certificate contains no information? How can they challenge the grounds when no information is given? An impossible position will be created for defendants and an invidious one for the courts.

I think much better of the Northern Ireland judiciary than to believe that they should be put in a position whereby the DPP alone can say, “I’m issuing a certificate and that’s that”, especially as the Secretary of State told the House on 13 December 2006 that the DPP might be acting simply on advice and information received from the security services. The Secretary of State volunteered that information—he was not asked or challenged to do so. When he was asked to explain what the impairment of the administration of justice meant, he said that the DPP might be acting on information from the security services that national security or intelligence sources could be compromised.

I am delighted with the hon. Gentleman’s flowery reply to a question that I did not ask, but could he give me a direct answer? Does the SDLP have confidence that the Northern Ireland judiciary can act impartially and are fully competent to deal with a case in a non-jury trial?

We have confidence that the judiciary can deal with applications for non-jury trials where that is provided for in measures such as the Criminal Justice Act 2003. It is the people who support the Government on clause 7 who believe that courts cannot be trusted with that role, and that only the DPP can be trusted to make a judgment in such matters. To give the DPP unique and overriding powers of judgment, above, beyond and immune from the court, is extremely peculiar. Surely, that turns on its head the proper relationship between the prosecution and the court in its determinations.

The hon. Lady says that the Government’s amendments deal with the issue, so I give her another chance to tell me how a defendant or lawyer could mount a judicial review that had even a chance of success on grounds of dishonesty or bad faith when there was no information that they could challenge. How could someone mount a successful challenge with no information? How could they claim that there was bad faith, dishonesty or an error in law when they had no way of knowing the grounds for the certificate and the courts were allowed no way of finding out? That is what the legislation proposes and it is wrong. Courts in Northern Ireland want better than to administer law in that way. They do not want to be fettered and overridden by a DPP who is entirely unaccountable and unchallengeable.

I shall speak briefly in support of the amendment moved by the hon. Member for Argyll and Bute (Mr. Reid) about who decides on the mode of trial. We discussed the matter at great length in Committee, so I shall not detain the House for too long.

I am not certain which amendment, if any, the hon. Gentleman intends to press to a vote, but we share his concern about the DPP deciding the mode of trial. As the DPP is responsible for the prosecution it does not seem fair or right that he should decide how the trial is conducted, especially as there are only limited means to challenge the decision.

I do not support the hon. Gentleman in his attempt to remove clause 7, as the Government have made a genuine attempt to address the concerns raised in Committee, and I am grateful to the Minister for that. However, I am still uncomfortable about the fact that the DPP, who is responsible for prosecuting, can take a decision about how the court should be run.

As I said when I raised clause 7 on Second Reading, it is rare for me to intervene in Northern Ireland business and I do so with some deference, because I am no expert on Northern Irish affairs. However, the provision could have a much wider application and raises a significant point of law, which is familiar to many Members. I speak with some passion on the subject having been a member of the Standing Committees on the Criminal Justice Act 2003 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and a member of the Public Bill Committee on the Fraud (Trials without a Jury) Bill, which is still before the House.

A clear pattern is emerging from Government legislation in this field: their deep distrust of juries and their distrust of the judiciary if there is any capacity whatever to remove the judiciary from a decision that the Government feel is better taken by the Administration. This ouster clause—it is an ouster clause—is still significant. I note that the Government amendments—this point was raised by the hon. Member for North Down (Lady Hermon)—clearly retreat on elements of what was originally proposed, which is welcome. I am pleased that that has happened. The Government have extended the circumstances in which a review can take place to include “exceptional circumstances”. Those circumstances are undefined, but at least some provision is made. They have reintroduced the Human Rights Act 1998 provisions, so that there is no derogation any more in relation to clause 1 falling outside the scope, by statute, of the provisions of the human rights legislation. That is important.

My argument on this issue is not a human rights argument; it is a rule of law argument. There is a clear distinction. I have confidence in the judiciary in Northern Ireland, as I have confidence in the judiciary in mainland Britain. I have always argued for judicial oversight of decisions that should be within that purview. First, I have grave doubts that what is proposed in the Bill is consistent with that level of confidence. Secondly, although I deploy the slippery slope, or thin end of the wedge, argument sparingly—because I do not often think that it is helpful to our considerations in the House—I see what is being proposed for Northern Ireland as the clearest possible precedent for trials without a jury elsewhere and for further provisions that will remove the ability to apply for judicial review.

My hon. Friend the Member for Argyll and Bute (Mr. Reid) referred to what happened when we were considering an ouster clause on a quite different matter—immigration and asylum claims—in the context of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. He drew attention to what the Joint Committee on Human Rights said. It clearly stated:

“There seemed therefore generally to be no right to challenge a decision of the single-tier Tribunal on the ground that it has acted incompatibly with a person’s Convention rights.”

It continued:

“Ousting the review jurisdiction of the High Court over the executive is a direct challenge to a central element of the rule of law, which includes a principle that people should have access to the ordinary courts to test the legality of decisions of inferior tribunals….

“Apart from the fact that the rule of law is a fundamental principle inherent in international human rights law, it is inherent in the fundamental law of the British constitution. It includes the civil right of everyone within the jurisdiction of the United Kingdom to have unimpeded access to the ordinary courts to test the legality not only of administrative decisions but also of the decisions of inferior tribunals. That is an essential element in the British system of government under law.”

Does my hon. Friend accept that the Government are playing with fire? In the Jackson case, three members of the House of Lords clearly said that if the Government continue to put forward ouster clauses, the House of Lords might change its mind about the fundamental doctrine of the sovereignty of Parliament.

I agree with my hon. Friend—[Interruption.] I am concerned by what is being said from a sedentary position by Ministers on the Treasury Bench. They are saying that this is not an ouster clause, but it transparently is. Whether it is justified or not is a different matter. While I am talking about setting a precedent, let me quote what the Constitutional Affairs Committee said at the time:

“An ouster clause as extensive as the one suggested in the Bill is without precedent. As a matter of constitutional principle some form of higher judicial insight of lower Tribunals and executive decisions should be retained. That is particularly true when life and liberty may be at stake.”

We had clear guidance on the importance of ensuring that Executive or tribunal decisions are subject to judicial oversight.

My difficulty with clause 7 is not just that it removes the right of review, but that the decision is not even made by a tribunal or a person acting in a quasi-judicial capacity. The decision is made by the Director of Public Prosecutions for Northern Ireland, who is a functionary of the state and part of the process of indictment. That seems particularly abhorrent. We are talking about a person who, in the exercise of their duties, is answerable only to a Minister in government. I stand to be corrected, but I believe that the Attorney-General is responsible for the Director of Public Prosecutions for Northern Ireland as he is for the Director of Public Prosecutions in the United Kingdom as a whole. This is the difficulty: the person who is responsible for prosecution determines the mode of trial, certifies it without giving reasons and then, other than in the most extreme circumstances, is immune from any review by a judicial body at any level—let alone the normal administrative court or High Court decision.

I can see—I think—the Government’s reasons for what they are proposing. I can see those reasons on the level of Northern Ireland matters. I question what they are proposing because there is a different process under the Criminal Justice Act 2003 for difficult cases—cases where there is a prospect of interference with the jury process. I question it because there is apparently no impediment to a judge taking that decision in those circumstances. I question it because my understanding is that the Bill is supposed to involve a process of normalisation and it is not normal for the chief prosecutor to decide how a case is going to be heard—whether it is before a jury or a judge-only court. It is not normal for that decision to be made by a functionary of the state, however well qualified and well intentioned that person may be, rather than a judge. That is why I find the proposal so difficult.

My hon. Friend the Member for Argyll and Bute has, in amendment No. 5, put forward a proposal that would undoubtedly mitigate the consequences and act within the spirit of what the Government intend. Although I recognise that the Government have drawn back from their original intentions and are trying to improve the Bill, they will have to improve it an awful lot further before it gets to another place—I give them due warning of that—not least because Lord Carlile of Berriew might reiterate his recommendations, which have been ignored, in relation to a right of review. The provision is still objectionable, in terms not just of its consequences for judicial affairs in Northern Ireland, but of its potential to act as a precedent for the whole of English, Welsh, Northern Ireland and Scottish law. That is why I am deeply troubled.

I draw to the hon. Gentleman’s attention a decision in the High Court in Belfast. The decision was made by the Lord Chief Justice of Northern Ireland and Lord Justice Campbell in 2004—so it is a recent decision—in relation to the Shuker case. It was in connection with Diplock trials and whether a decision to schedule or deschedule an offence was reviewable. The Lord Chief Justice and Lord Justice Campbell ruled that

“it is not a process which is suitable for the full panoply of judicial review superintendence”.

Those are the words of the senior judiciary in Northern Ireland. Can he reconcile that recent decision with the remarks that he has just made about clause 7?

I am grateful to the hon. Lady. That is the basis on which the Government are bringing forward their proposal—I have no doubt about that. I would not argue about having a process that was not the normal process of administrative review, or a special arrangement that recognised the difficulties that were recognised in the Shuker case and elsewhere. That is not my difficulty. I simply have a difficulty with the fact that the Government have decided that because a court was reluctant to intrude—I think that that was the expression used by the judge—it should be impossible for a court to intrude. That is wrong in both law and principle.

Is there not a world of difference between a decision of the High Court, which is subject to appeal and to the development of the common law through the courts—the law might change utterly in the future—and a rigid statutory rule passed by Parliament?

To my hon. Friend and me there is a world of difference, but, to the Government, I suspect that there is not. The Government prefer to work on the basis of statute and to exclude, rather than to include. They like things to be exclusive, rather than permissive. I support the development of common law that my hon. Friend describes, the good sense of the judiciary and the ability of the common man to use the courts effectively. However, that will be excluded under clause 7, which is why I find it objectionable. I thus hope that my hon. Friend the Member for Argyll and Bute will press amendment No. 15 to a Division.

If that amendment is pressed to a Division, I make it clear that we will support the Government. The Minister might look a little surprised by that, but he should not. Let me explain some of the reasons behind our position.

Lying behind the debate is the implication that if a decision is taken to issue a certificate so that a case will be considered by a non-jury court—I think that this is the point that the hon. Member for North Down (Lady Hermon) was trying to get at—a defendant will somehow or other have to face a lesser standard of justice than that available in a jury court. Nothing could be further from the truth. Although the hon. Lady challenged the hon. Member for Foyle (Mark Durkan) twice, I noticed that he studiously avoided answering her question because he knew that he could not stand by any claim that a non-jury court gives a defendant a lesser standard of justice than a jury court.

The logic of the hon. Gentleman’s argument is that we should just do away with jury trials altogether. Why have jury trials if there is no difference in the standard of justice, if people are saying that non-jury trials are as good as jury trials, and if there is no desire for the principle and tradition of jury trials? If anything, the hon. Gentleman is further alarming those hon. Members who are worried that the provision represents the thin end of the wedge. The logic of his argument is that if there is no difference, all trials should be non-jury trials.

The hon. Gentleman knows that we made it clear on Second Reading that we were relaxed about continuing non-jury courts in Northern Ireland and, indeed, that given the circumstances in Northern Ireland, we believed that the Government were probably moving too fast towards doing away with non-jury courts. Indeed, the hon. Gentleman’s colleague, the hon. Member for Belfast, South (Dr. McDonnell), as a member of the Northern Ireland Affairs Select Committee, endorsed a report by that Committee indicating that we should not move quickly away from such trials because exceptional circumstances still remained.

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The hon. Gentleman wishes to answer on behalf of the hon. Member for Belfast, South; I will be more than happy to listen to him.

The hon. Gentleman might remember that a point about dealing with organised crime was raised in Committee, and that the Northern Ireland Affairs Committee says that adequate provision is needed to combat such crime. In our view, there is adequate provision under the Criminal Justice Act 2003, and the matter depends on application to the court.

I will come on to that point in a moment or two. However, I first want to establish that the fact that the DPP issues a certificate for a non-jury trial does not in any way reduce a defendant’s ability to have a fair trial. Indeed, if we examine well-publicised cases of miscarriages of justice, we find that they took place not in non-jury courts, but in jury courts. We must establish that fact at the outset because it relates to the underlying theme behind the arguments made by those who wish to change the Bill.

Will the hon. Gentleman give way?

No; I want to develop my point.

The reason for going for a non-jury trial is to ensure not that a defendant does not get a fair trial, but that the administration of justice is not impaired in any way by interference with a jury. The whole thrust behind keeping non-jury courts is to ensure that justice is done, rather than to deny justice to a defendant. The purpose of the process is to ensure that society is properly protected from those in Northern Ireland who have shown over the years—even in recent years—that they are not above tampering with, intimidating, or trying to influence a jury.

May I remind the hon. Gentleman that, in Committee, he supported an amendment tabled by the hon. Member for North Down (Lady Hermon) that would have allowed courts to draw an inference from the fact that a certificate had been issued, even though there was no supporting evidence? He wanted a judge in a non-jury court to be able to draw such an inference, but surely a defendant in such a case would receive a lesser quality of justice than a defendant in a jury court.

The hon. Gentleman talks about a judge drawing an inference, but if we were to go down the route proposed by the hon. Member for Foyle and the Liberal Democrats and a judge were able to make a decision, such a situation could arise.

A second implication underlying the arguments made by those who support amendments Nos. 5 and 15 is a suggestion that the DPP will rush towards non-jury trials. Nothing could be further from the truth. If anything, the DPP has been trying to de-schedule as many offences as possible over the years in Northern Ireland to the point that only 49 cases in 2005 went through the system as non-jury cases. The push in the DPP’s office is to move away from such trials, so the idea that the DPP wants to hang on to the power and does not want it challenged in any way because it suits him, as the prosecution, to have non-jury courts is not even supported by the evidence. The evidence shows that the DPP wants to move away from such trials. On those two grounds, we have fewer concerns than other hon. Members, so we will not support the amendments.

I will outline what I believe would happen if we accepted either amendment. If a judge were to review the DPP’s decision, why would it be necessary for the DPP to make a decision in the first place—just let the judge make it? The hon. Member for Tewkesbury (Mr. Robertson) said that it would not be fair for the DPP to decide the mode of trial when he was carrying out the prosecution. However, if a judge had the ability to review the DPP’s decision, the person who might eventually make the judgment could be taking a decision on the mode of trial. Some people would argue that that is equally unfair, or maybe even less fair.

In the amendments that I tabled, which were not selected, I called for the Lord Chief Justice of Northern Ireland to make that decision. I entirely agree with the point that the hon. Gentleman is making.

The judgment in the Shuker case indicates to me that the judiciary want minimum interference in the process.

I return to the point that I made earlier—I do not believe that the DPP will rush for non-jury trials. Even under the Bill, the DPP will be able to recommend non-jury trials only if there is evidence, first, that people are associated with paramilitary or criminal organisations and, secondly, that that association is likely to lead to the impairment of the administration of justice. So a high threshold to allow for such trials already exists, against the background of an unwillingness on the part of the DPP to go down the route of non-jury trials in the first place.

I thank the hon. Gentleman for giving way again. I remind him yet again what we were told from the Dispatch Box by the Secretary of State on 13 December. He envisaged the DPP using the powers on the basis of information that he had received from the intelligence services. The Secretary of State said that the DPP must be able to go to a judge and say, “Here’s a certificate for a non-jury trial because the case might compromise issues of national intelligence.” What has that to do with protecting against the impairment of justice? It is an entirely different consideration, but it is the first issue to which the Government resorted when tested.

The hon. Gentleman totally misunderstands or deliberately seeks to misrepresent the point that is being made. The certificate will be issued on the basis of intelligence. How, for example, is it known that the defendant may well be a member of a paramilitary organisation and that his associates intend to intimidate the jury? Very often that will become known as a result of intelligence, hence the input from the intelligence services into the decision whether to issue a certificate.

If the decision to issue a certificate was open to judicial review, we can be sure, given that the decision was probably based on intelligence, that anybody facing such a certificate would immediately instruct his lawyers to apply to the court for judicial review. For what purpose? To try and find out what intelligence there was about him, where it came from and who provided the information.

That is exactly the reason that the Government have given—and the soundest reason, because there are already examples of it—for not providing such an opportunity in the system for those who would seek to use the issuing of a certificate as a means of trawling to find out what the intelligence services know about them or the organisations with which they are associated. To me, that is a far greater threat than the possibility that someone may have to face a non-jury trial—a trial in which they will get a fair hearing anyway.

Is not the crux of the matter, as the hon. Gentleman says, the balance? There is no risk to somebody standing trial without a jury, but there is a greater risk of jury tampering the other way. In Committee the Minister made it clear that we are talking about only a handful of cases, which he expects to decline in number over the years.

I thank the hon. Gentleman for that intervention. We can be sure that every time a certificate is issued, it will be challenged.

I understand why the hon. Gentleman might argue against the process of judicial review, but I cannot understand why he might argue against the parallel provisions in the Criminal Justice Act 2003 for the application to the judge by the DPP for a case to be tried without a jury, which at least provides a level of judicial control. Where is the mischief in that, in terms of all the arguments that he is putting before the House?

There is no mischief in so far as that adds another step to the process, but given that the decision will be based on intelligence and will still allow the possibility of a trial by a non-jury court, which is equally valid and has the same safeguards as a jury court would have, I believe that it is a non-essential step. It is also a step in which the judiciary do not want to interfere, as we know from the Shuker case.

Perhaps I could assist the hon. Gentleman. It is a rare event for me to come to the assistance of the hon. Member for East Antrim (Sammy Wilson), but I will put it on the record. He will recall from Committee debate that the Criminal Justice Act 2003 operates in a completely different sphere. It operates only when there is a real and present danger of jury tampering. The Bill deals with four conditions set out in clause 1, including membership of a proscribed organisation, plus the key risk to the administration of justice. There is an essential and fundamental difference between the 2003 Act and the Bill. That might help the hon. Gentleman.

I thank the hon. Lady for the intervention.

If, every time a certificate is issued, it is challenged, and given that it will probably have been issued on the basis of intelligence that may become apparent during a judicial review, the easy way out, which we know will be taken by the DPP, is to go for a jury trial, with all the attendant difficulties and all the attendant dangers that the jury could be tampered with and that justice could be impaired. For that reason we will support the Government. We believe that paramilitary groups still present a danger through their influence on juries, so the safeguards are necessary.

It probably will not surprise the hon. Member for Argyll and Bute (Mr. Reid) that I shall oppose his amendments Nos. 5 and 15 and speak in support of the Government amendments.

I begin with the context in which the Bill is passing through the House and we are considering these issues. In his remarks my hon. Friend the Member for Foyle (Mark Durkan) almost blamed the Government for the fact that things are improving. They are improving, as evidenced by the reduction in the number of Diplock trials. In 1987 there were 354 Diplock trials, and in 2005 the number had fallen, as the hon. Member for East Antrim (Sammy Wilson) pointed out, to 49. That is why, in the Bill, we are reversing the presumption in favour of trial by jury, rather than the current system in which, if someone is charged with a particular offence, the presumption would be a trial by judge alone. We are reflecting the changing circumstances and the more normal conditions by reversing that presumption. But the fact that we can do that, the fact that we can be more optimistic about the position in Northern Ireland, is not a time for naivety, because some cases still need to be tried by judge alone, and that is why we are bringing forward the Bill.

The Minister misrepresents the legislative position. Last year the House passed legislation that repealed Diplock courts. Those were to end in July 2007, possibly renewable for one year, but one year only, to July 2008. Diplock courts—no more; no-jury trials—no more. That is what the Government legislated for. This measure reverses that and provides for continuity Diplock courts to be available permanently on the say-so of the DPP.

My hon. Friend misrepresents the Government, because we made it clear at the time when the statement to which he refers was made that this was an issue that would require further thought, and we have given the matter further thought. Indeed, we have consulted on that, and it is as a result of those consultations and further deliberations that we come now with a proposal to reverse the presumption in favour of trial by jury but in those few cases that will still require a trial by judge alone to ensure that there is the facility within the criminal justice system in Northern Ireland to deliver that. We say yes to a very high test and yes to a certificate by the DPP, but in a way that will enshrine a proper system of justice in which we can ensure that for those jurors who might be subject to intimidation, the risk that justice would not be done, that the administration of justice would be undermined, will not be taken.

It is true that the DPP, when considering against that high test whether to issue a certificate, will have to consider information that may remain private—it may be intelligence; it may be information from the police about a pending prosecution or about further investigations. Yes, there may be some information that cannot be shared. That is why we have rehearsed these arguments in Committee and that is why we have chosen the route that we have where we do not have full disclosure within a full-blown judicial process of all the information. One of the reasons why—a point made repeatedly in Committee by the hon. Member for East Antrim—is that if we do not have this measure in place, there is a danger that intelligence will not be shared at that decision-making point, and that therefore trials will go ahead with a jury that should not go ahead because of all the attendant risks. We must ensure that justice is done in every case, including in those cases where there is a real risk that the administration of justice would be undermined.

I appreciate the Minister’s concerns that intelligence could get out into the open, but would he not accept that under amendment No. 5, the intelligence sources would not be made public, because the judge would decide on the basis of written submissions whether the trial should be before a judge or by jury? Under amendment No. 5 that risk does not apply.

If the hon. Gentleman will allow me, I will come on to amendment No. 5 in a minute, but I want to deal with one other point before I do so, and that is the issue of the Lord Chief Justice and the view of the judiciary in Northern Ireland on this matter. I know that the hon. Member for Tewkesbury (Mr. Robertson) has pressed me on this before and he raised the matter again today, but the hon. Member for North Down (Lady Hermon), reinforced by the hon. Member for East Antrim, made the point that the Lord Chief Justice has made it clear that this kind of decision is not one in which the judiciary should be routinely involved. It is one that is quite appropriate for the DPP, who every day has to make decisions about mode of trial—whether a case should go to the Crown court or the magistrates court—and has specifically said that this kind of decision should not be subject to the full panoply of judicial review. The view of the judiciary, which the House should take seriously, is clear on the issue: the decision is an appropriate one for the DPP and is not one that the judiciary should be routinely involved in.

Given that we are talking about trials going ahead without juries, which is unusual, that is a political decision. It is not one for the judiciary to decide; it is for politicians to decide. If we are saying that in certain circumstances trials should go ahead without juries, surely it is for us to say who should make that decision. It is not right that the person responsible for bringing the prosecution should decide whether there is a judge or whether there is a jury. It is not his role to do that.

I accept the hon. Gentleman’s point, but in the end it is for us here to decide which is the appropriate method of making the decision. However, we need to take cognisance of the advice that comes from the Northern Ireland judiciary. The Lord Chief Justice made that clear in his judgment. The hon. Gentleman is right, but in the end it is a decision for us in the limited number of cases where such a decision may need to be made.

The Minister refers to the view of the Lord Chief Justice for Northern Ireland, but he is not giving advice but deciding a case. He is speaking judicially. It is quite different to say on the one hand that the Lord Chief Justice may no longer decide the standard of review, but must have regard to a parliamentary statute, while on the other saying that the Lord Chief Justice’s own view is that there should be some restraint by the judges. Those are totally different matters. What the Minister is proposing fundamentally violates the rule of law.

I do not accept the hon. Gentleman’s analysis. In the end it is for us to decide what test should be applied and who should apply it. He will know from the Government amendments that we have to some degree revised our view about the scope in which an appeal can take place. That is us taking a measured political decision. Yes, we are taking advice of the opinion through a judgment of the Lord Chief Justice, but applying our own political judgment at the same time. That is a matter for us. I do not accept the hon. Gentleman’s analysis of our proposal.

My hon. Friend said in response to the hon. Member for Tewkesbury (Mr. Robertson) that it is for the House to decide who takes the decision in the future. Will he answer a question that he could not answer in Committee? Who will be deciding in the future whenever justice and policing are devolved? Will the Assembly have the power to amend the legislation, or will it be this House and the Secretary of State?

The answer is the same as it was in Committee. These are matters that have to be worked out. It is not possible to say precisely on this day how such decisions will be made and what the legislative position will be. These are matters that, as he knows, have to be further discussed. The most important thing is that the DPP in Northern Ireland remains a completely independent figure, making these decisions completely unhindered and uninfluenced.

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I give way to the hon. Member for Cambridge (David Howarth) in the hope that we will finally agree whether we agree or disagree on this, then I will give way to the hon. Member for Lancaster and Wyre (Mr. Wallace).

This might have to be my final intervention on this because we have reached the ultimate point. The Minister seems to think that the rule of law and the sovereignty of Parliament are one and the same thing. If he goes ahead with this ouster clause, this will be an historic moment because he might well find that the judiciary thinks the opposite.

I do not accept that this is an ouster clause, and I do not accept the hon. Gentleman’s argument. There are limited ground