With this it will be convenient to discuss the following: amendment 25, in schedule 1, page 6, line 10, at end insert—

‘(2A) During the period between the relevant Minister ceasing to hold office and an appointment being made under the provisions of this Part, the Prime Minister shall appoint a person, being a member of the United Kingdom Parliament, to discharge the duties of the office.

(2B) A person appointed under sub-paragraph (2A) may speak and move motions in the Assembly.

(2C) The provisions in sub-paragraphs (2A) and (2B) shall not apply if the relevant Minister has ceased to hold office by virtue of a dissolution.’.

Amendment 19, page 6, line 15, at end insert—

‘(4A) But a member of the Assembly who is a member of a political party may not be nominated unless the nominating officer of the party consents to his nomination within a period specified in standing orders.’.

Amendment 7, page 6, line 37, at end insert

‘and in addition has made a solemn declaration to respect the operational independence of the Chief Constable of the Police Service of Northern Ireland and to uphold the independence of the judiciary’.

Amendment 20, page 6, line 42, leave out ‘or’.

Amendment 4 , page 6, line 44, at end insert ‘by such reason as—

(i) he has been convicted of a criminal offence in Northern Ireland or elsewhere after the date of his appointment;

(ii) he has become bankrupt or made a composition or arrangement with his creditors;

(iii) he is not committed to non-violent and exclusively peaceful and democratic means;

(iv) he is otherwise unable or unfit to discharge his functions as a minister.’.

Amendment 21, page 6, line 44, at end insert ‘or

(d) where consent to his nomination was required under sub-paragraph (4A), he is dismissed by the nominating officer who consented (or that officer’s successor) and the Presiding Officer is notified of his dismissal.’.

Amendment 3, page 7, line 9, at end insert—

‘(13A) Standing orders may (but need not) limit the number of such motions that may be moved during any period specified in standing orders.’.

Amendment 8, page 8, line 10, at end insert—

‘Immediate filling of Ministerial office

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

Amendment 26, page 8, leave out lines 12 to 22.

Amendment 22, page 8, line 13, leave out subsections (2) and (3) and insert—

‘(2) If the relevant ministerial office has not been filled within the period mentioned in section 16A(3) then—

(a) all Northern Ireland Ministers shall cease to hold office, and

(b) all ministerial offices (including, notwithstanding any provision to the contrary, the relevant ministerial office) shall be filled by applying section 18(2) to (6) within a further period of seven days.

(3) Accordingly—

(a) section 16A(8) of the 1998 Act shall apply to a person taking up Ministerial office as a Northern Ireland Minister as if it referred to the period mentioned in sub-paragraph (2)(b); and

(b) section 32(3)(a) of the 1998 Act shall apply as if, in the case of Ministerial offices to be held by Northern Ireland Ministers, it referred to the period mentioned in sub-paragraph (2)(b).’.

Amendment 5, page 8, line 15, at end insert

‘but within a period of six months beginning with the day of first meeting of the Assembly’.

Amendment 6, page 8, line 16, leave out sub-paragraph (3) and insert—

‘(3) Sections 16A(8) and 32(3)(a) of the 1998 Act apply accordingly.

(4) If the relevant ministerial office is not filled within the period specified in sub-paragraph (2) the Secretary of State shall assume the direction of the Department.’.

Amendment 2, page 8, line 22, at end insert—

‘Minister ceasing to hold office

7A Paragraph 3D(11)(c) of Schedule 4A to the 1998 Act does not apply—

(a) before a resolution is passed for the purposes of paragraph 8(1)(a) below, or

(b) if no such resolution is passed, before 1 May 2012.’.

Amendment 23, page 8, line 24, leave out paragraphs 8, 9 and 10.

Amendment 9, page 8, line 28, at end insert—

‘(1A) In the event of the department being dissolved on 1 May 2012 or before, and neither of the provisions of sub-paragraph (1) have been fulfilled, the Secretary of State shall assume responsibility for policing and justice.’.

Amendment 27, page 9, line 15, at end insert—

‘(10) If the department is dissolved at any time, the direction of the functions formerly performed by the department shall be undertaken by the Secretary of State.’.

That schedule 1 be the First schedule to the Bill.

New clause 1—Expiry of sections 21A, 21B and 21C of and Schedule 4A to the 1998 Act—

‘After section 21C of the Northern Ireland Act 1998, there is inserted:—

“Expiry of sections 21A, 21B and Schedule 4A

21D (1) Unless, before 1 May 2012, the conditions set out in subsections (2) to (6) are met, then on 1 May 2012—

(a) all Northern Ireland Ministers shall cease to hold office (including any relevant Minister within the meaning of Schedule 4A);

(b) any deputy minister or relevant junior minister within the meaning of Schedule 4A shall cease to hold office;

(c) sections 21A, 21B and 21C and Schedule 4A shall be repealed;

(d) notwithstanding any provision of any Act of the Assembly to the contrary, there shall be only one ministerial office in respect of a Northern Ireland department exercising functions consisting wholly or mainly of devolved policing and justice functions;

(e) all ministerial offices are to be filled under section 18 of the 1998 Act.

(2) The first condition is an Act of the Assembly has provided for a Northern Ireland department exercising functions consisting wholly or mainly of devolved policing and justice functions.

(3) The second condition is that any provision of the kind referred to in section 21A(3), (3A), (4), (5) or (5A) was enacted, it has been repealed.

(4) The third condition is that a determination has been made under section 17 creating a single ministerial office in respect of the Northern Ireland department referred to in subsection (2).

(5) The fourth condition is that all ministerial offices have been filled under section 18 of the 1998 Act.

(6) The fifth condition is that an order referred to in section 4(2A) has entered into effect.”.’.

As I said on Second Reading, and as Members will know very well, the SDLP does not have much of an appetite for clause 1. Indeed, we might have something of an allergy to it. However, as golfers apparently say, we must play the ball where it lies. We know what has been happening, and we know what will be happening.

Despite our misgivings about the changes involving the appointment of Ministers and the damage that that will do to the agreement, we have tabled a number of amendments that we believe would make good some of the damage, and also provide for a more definite fall-back than is provided for in the Bill. Indeed, we have been told that the Bill contains no fall-back.

Amendments 22 and 23 and new clause 1 are intended to deal with what will happen in 2011, and the possibility of an indefinite period with no Minister, following an Assembly election. Amendment 22 proposes that, rather than there being an election after seven days, the d’Hondt system would be reverted to: the fall-back would be as per the agreement. We believe that that would help to concentrate minds, because if parties wanted to avoid the d’Hondt option they would ensure that there was agreement on the election of a Minister, so the issue would not arise. The amendment would, we hope, help to avoid the difficulty that I described earlier.

Amendment 23 and new clause 1 deal with the 2012 problem: dissolution. The Minister said that the House was leaving all this to devolution, after which it would be a matter for the parties. However, the Bill does not only devolve; on 1 May it will dissolve as well, and we consider that wrong, rash and dangerous. We do not assume that there will be “sweetness and light” agreements before that date, and that people will not play all sorts of games of political brinkmanship on the way. We want a fall-back position guaranteeing that a Department will continue so that people can be assured of stability.

So that the hon. Gentleman does not put an unhelpful construction on it, let me explain why the outcome was agreed. It was recognised that, as policing and justice had not been dealt with in any Assembly for decades, it would be best to have the operation up and running under an agreed system: let us see where the problems lie and where the improvements can be made, and then we can design the more permanent model. No ulterior motives were involved.

I hear what the right hon. Gentleman says, but I have also heard him say on many occasions that the DUP does not want to go into devolution in circumstances in which there would not be a default position. Here we have the devolution of justice without a clear default position. Some of us do not believe that devolution without default should mean returning to direct rule. Some of us do not want to pull the direct rule communication cord just because political games are going on. We tabled amendment 23 to make good the problem that I identified earlier, which I shall not rehearse again.

Amendments 19, 20 and 21 relate to a point touched on by the hon. Member for Orkney and Shetland (Mr. Carmichael): the role of the nominating officer. Previous Government models for various forms of election of a Justice Minister allowed the nominating officer to consent to the nominations, and also to have a role in the removal of a party member from office. That is clearly absent here.

A number of questions arise, including those put by the hon. Member for Orkney and Shetland. There is nothing in the Bill to protect a Minister of Justice from being ousted from office on a pretty capricious basis. The fall-back—or non fall-back—position in paragraph 5(2)(b) of schedule 1 is to do with whether or not the Minister and deputy Minister can be from the two largest parties. Even if an Alliance Member had occupied the post on a transition basis, they might be discriminated against and eliminated from the fall-back model. That is why the Alliance should not, perhaps, trust everything in these arrangements.

There is another question for the Alliance party. It might not want a role in terms of the nominating officer and nominating or appointing the transitional Minister, because it might want to be able to say that they are not an Alliance Minister—it might want to be able to say that it is still the principled Opposition, and that it has not nominated or directly appointed a Minister, but that they are an Assembly nominee. Therefore, the Alliance would protect its position as being the Opposition, as it would claim. Our amendments are intended to address these matters.

Does the hon. Gentleman not accept that at present the Assembly works in such a way that if a party in the Executive decides it wants to be in opposition, it simply says it is opposed to everything? Therefore, on the point about a proposed Alliance Minister saying that, because there was no nominating officer, their party is divorced from the situation, that happens even when there is a nominating officer—and even the hon. Gentleman’s party denies any responsibility for Executive decisions on occasions, even though it has been participating in that.

I have observed before that irony in politics is usually just hypocrisy with panache. A Democratic Unionist party Member is complaining about parties with Members in the Government engaging at the same time in some Opposition tactics in the Assembly, but the DUP did that in the past, and it still does it. The hon. Gentleman asked the Minister of Education to change the budget even though it had already been decided, and brought motions before the Assembly, so we will take no lessons from him on that.

That other Members have already asked about the nominating officer issue adds to the currency and relevance of our amendments. We do not particularly want to press them to a Division; we just want to find out more about the thinking on these matters. Our reservations about clause 1 are known. We have tabled these amendments to try to reduce, mitigate and make good some of those concerns, and to undo and limit some of the uncertainty that the Bill is impregnated with.

I am delighted that the hon. Member for Foyle (Mark Durkan) is learning so many lessons from the DUP about ingenuity and excellence in strategy. A colleague of his in another place suggested he would have to be up early in the morning and have his breakfast a lot earlier before he would ever be able to outwit the DUP, but if he remains a Member for a long time he may learn a lot more about how to progress on the political scene.

I wish to talk about the SDLP’s new clause 1 and about d’Hondt being the fall-back position if there is no agreement by May 2012. Let us be quite frank about this: the intention of those who want a real democracy in Northern Ireland is to move away from d’Hondt. We do not want to replicate a situation in which we have mandatory coalitions. Some Labour Members mentioned that to have a good system of Government, we need a vibrant Opposition, and I agree. Therefore, having everyone go into a mandatory Opposition and all the major parties are in the Government is not the best way to govern people. A voluntary coalition is completely different: those in government could have policies that are in line with each other, and those with different policies could oppose them and present their views before the people. That is a vibrant democracy, and although some might suggest that we keep on with and replicate the d’Hondt system, I believe the people of Northern Ireland want to move away from that.

Let me make it abundantly clear to the hon. Member for Foyle that the November agreement was predicated on there being no fall-back provisions in place after 2012, because in reality the fall-back is this House. Why, as an honourable Member of this House, would he not want that to be the fall-back position? Why would he not wish to rely on the sovereignty of this Parliament? I cannot understand why he is afraid of that situation.

I have tabled three amendments, and I wish to amplify them. I still hope that I will be able to hear from my hon. Friend the Member for Upper Bann (David Simpson); to the extent that I contributed to the squeezing out, I apologise to him and his constituents. This clause stand part debate allows us to paint a wide canvas in our debate anyway.

I perhaps unintentionally caused some levity when I referred to the Justice Minister going down the steps of Stormont. The serious point is that if there is a Justice Minister, there could be a sudden, unforeseen vacancy, as a result of either a resignation or an accident—we cannot dismiss this issue. The problem is that such occasions often occur at the least convenient time, and there is the possibility of a big political row or crisis in Northern Ireland. Let us assume, for the purposes of this debate, that the Alliance party has filled this post. It might not suit the party, at such a moment, to offer a replacement, or the replacement might not be acceptable to the other political parties of Northern Ireland, and thus there could be a paralysis for a significant period.

May I buttress my argument by pointing out that when the right hon. Member for North Antrim (Rev. Ian Paisley) stepped down as the first First Minister, that created a hiatus—a period when it was not possible to agree, for some time, normal government arrangements? Had he not stepped down, that probably would not have happened, but the occasion invited some people, who are probably not in this Chamber, to orchestrate difficulties. I foresee a situation in which this would happen as a surprise and without notice. I put the following question to the Committee: can there be a Justice Ministry with no Minister? There is no jurisdiction in the democratic, free world that does not instantly replace a Justice Minister—it is done with dispatch.

I understand entirely the point that the hon. Gentleman is making. With reference to the events of last summer, it needs to be put on the record that there was a smooth enough transition in the actual appointment of the new First Minister and Deputy First Minister. To come back to the point that I made in an intervention on the hon. Member for South Down (Mr. McGrady), what happened subsequently was that Sinn Fein decided—this was nothing to do with the process of the appointment of the First Minister and Deputy First Minister—to block meetings of the Executive on a political basis. We wanted to proceed with those meetings.

I am grateful to the hon. Gentleman for setting the record straight, but that does not detract from my point. It was the occasion of the change that gave Sinn Fein an opportunity to cause problems, and that could happen again. We need to build in some contingency provision should such a situation occur and there is a sudden and unforeseen vacancy between now and the next Stormont elections, never mind 2012. The House should consider that if there is no prospect of an immediate appointment to the position—by which I mean two or three days, or at most a week—the default position should be that the Prime Minister would appoint someone with the power to appear before Members at Stormont and answer their questions, and to pilot legislation, although without voting rights.

Such a provision is necessary, because at the moment of his or her demise the Justice Minister could be in the middle of taking legislation through Stormont, and that would have to be suspended, even though it might be important or even—dare I say?—urgent legislation. That is the reasoning behind amendment 25. If a vacancy for a Justice Minister were not filled with due dispatch, as would be the norm in every jurisdiction in the free world, someone would be appointed by the Prime Minister of the United Kingdom. If that provision were on the statute book, it would help to focus the minds of those who make up the body politic of Northern Ireland to resolve the issue themselves.

After the 2011 Stormont election, it is possible that the Assembly will comprise only designated Unionists and designated nationalists. That could lead to paralysis again, so the sanction of dissolution, and thus another election, should exist if the new Stormont cannot resolve this Executive appointment. That sanction exists for the rest of the d’Hondt Executive, and this Bill ring-fences the Justice Minister by saying that the sanction would not apply. That would again invite those who are not in this Chamber to cause political aggravation. We need to strike out that provision, as amendment 26 provides.

The parliamentary draftsmen used peculiar wording in the provision to the effect that the Department would be dissolved. That is surprising, because a Department does not dissolve. A Minister might disappear, and paralysis might ensue, but the actual functions of a Justice Department would still be there—the civil servants, the lawyers and the bricks and mortar. We need provision for 2012, because if the Northern Ireland Assembly and Executive were not able to resolve a post-2012 situation, the default position should be a reversion to direct rule for that particular Department, and it is only good practice to put that in the Bill.

Those are the points that I wanted to raise and it seems to me that my amendment 27 would be a sensible solution. If we had had more time and a proper Committee stage, we could have explored this issue. In any event, those of us who have tabled amendments are inviting those in another place, before the Bill arrives there, to discuss these options with the Secretary of State and to prepare beefed-up amendments that encourage, coax and provide for the Northern Ireland Assembly to see that today’s intentions are enduring and that once the powers for justice and policing have been devolved, they will not be subject to a hiccup or a hiatus that might be unnecessarily caused by people who might not be here.

I want to speak fairly briefly, because we are short of time and I raised one or two issues on Second Reading. As I said, we welcome this model. It appears to us to be the best of the eight models, but we are concerned about one or two things. The hon. Member for Thurrock (Andrew Mackinlay) has reinforced the arguments about the open-ended nature of the situation. If policing and justice were devolved later this year—I hope that that will happen if the circumstances are right—how long would it take for a Minister to be in position? The hon. Gentleman is right that any Department needs a head, whether we call them a leader, a director, a Minister or something else. Otherwise, how can it function? If it can function perfectly well without that head, why should we have any Ministers at all? That is the logical conclusion of the argument.

We believe that there has to be a head of Department. We also believe that because of the special and difficult circumstances in Northern Ireland, and because this move is ground breaking, it is inconceivable that there should not be a Minister to oversee the Department. After an Assembly election, there are seven days in which all the other Ministers can be appointed, yet there is no time limit for this particular appointment. Of course, given the difficulties and sensitivities, it could take more than the normal seven days to fill the position. We also recognise that discussions have been going on about who would be suitable—perhaps I should say acceptable—in the role. It could be that that person did not win their seat back after an election, so we would have to start all over again. It could take a bit longer than seven days.

The time limit that we are suggesting is six months. According to the discussions that we have had, that is probably a long time, too. It probably is too long, but I wanted to put down some time limit and it is very difficult to come up with one. Given the record of deadlines being broken in Northern Ireland—the right hon. Member for Neath (Mr. Hain), who is not in his place but has contributed to the debate, famously broke two absolutely unbreakable deadlines the year before last—we know that it is difficult to impose deadlines. However, we already have a deadline for the appointment of the other Ministers and I suggest that we ought to have a deadline for the appointment of this Minister. As the hon. Member for Thurrock said, that would concentrate minds on what is absolutely necessary, if nothing else.

We are concerned about the immediate appointment if devolution takes place before the next Assembly elections. We are also concerned about the appointment after the next Assembly elections, so we tabled amendments 5, 6 and 8, which address those points. Amendment 8 refers to the time limits that can be taken to fill the office once the devolution order has been made, while amendment 5 requires the office to be filled within six months of the Assembly’s first meeting after an Assembly election.

In amendment 6, we propose a default position. This is a difficult matter, as we want policing and justice to be devolved, as I have said repeatedly. It would therefore be deeply unsatisfactory to return the powers to the Secretary of State, but given the nature of the problem in Northern Ireland, that would probably be the least bad of all the options. The hon. Member for Thurrock has made his own suggestions about a fall-back position. I listened to him extremely carefully and do not have violent disagreements with what he said, but I think that I prefer our amendments.

I wish to speak to amendments 2, 3 and 4, which stand in my name and the names of my right hon. and hon. Friends. First, however, I should like to pick up a couple of points made by the hon. Members for Thurrock (Andrew Mackinlay) and for Tewkesbury (Mr. Robertson), both of whom have tabled amendments concerning the post-2012 scenario.

I listened with great care to both speeches, and I understand the logic of the reasoning, but I believe that putting into the Bill a provision that envisages the future involvement of Whitehall and Westminster in criminal justice matters in Northern Ireland would send the wrong political signals. Given the political history of Northern Ireland, I think that the Government would be ill advised to countenance the possibility that devolved criminal justice powers could head back here at some future stage.

Amendments 2, 3 and 4 express concerns to which I referred on Second Reading, but I will speak about each of them individually. I have already placed my concerns on record, and the Minister explained the Government’s position on those concerns. He told us in his winding-up speech on Second Reading that those whom the Assembly appoints, it should have the power to remove, because other Ministers, who are effectively appointed by their party leaders, can be removed by their party leaders. I accept that that has a legislative and constitutional symmetry, but that should not be our only consideration; indeed, it is by no means the most important consideration. If legislative neatness had been our only consideration hitherto when passing Bills in this place, an awful lot of laws would have taken a very different shape.

The danger is that, in pursuit of legislative neatness, we might ignore or not give sufficient importance to the end product, which must surely be the devolution of criminal justice in a stable and sustainable way. I put it to the House, and directly to the Minister and the Secretary of State, that the model that they have put forward today would be neither stable nor sustainable. It would be unacceptable to leave a Justice Minister in a position in which his or her removal could be effected in a different way from that of every other Minister in the Executive. That would be unacceptable for any Minister. If the political operation of every Minister is to be of equal standing, the stability and continuity of the positions ought to be the same.

Would the hon. Gentleman not accept that although the situation for the Justice Minister is different, it is actually stronger? Surely someone who is nominated by the nominating officer of a party does not have the same standing as someone who has the cross-community support of the Assembly; it would therefore be harder to disqualify the latter from their position. On top of that, would it not be very foolish of somebody to take up the position unless they had settled, fairly clearly, that they would not be sacked on some frivolous account?

I accept that the right hon. Gentleman makes that point in good faith, but first, it concentrates more on the powers of appointment than on the powers of removal, and secondly I do not think that the circumstances that he mentioned do strengthen the Justice Minister’s position, because whatever undertakings might be given at the time of the appointment, none of us knows what is around the corner. Earlier, the Secretary of State spoke about frivolous removal, but the removal need not be frivolous. It might be removal on the basis of substantial and important political issues. No other Minister can be removed in that way or for that reason, and I see no reason why the Justice Minister should be put in a different position.

As we all know from our daily experience in this place, the fact is that Justice Ministers and Home Secretaries are often called on to take very difficult decisions—decisions that probably, in an ideal world, they would choose not to take. They do so because they are in a secure position, however, and because they have to. If a Justice Minister is vulnerable to a populist movement within the Assembly, they will not be able to take the difficult decisions that a Justice Minister might be required to take. In that most important sense, the standing of the Minister within the Executive is diminished.

The hon. Gentleman describes a situation that it was never intended would occur, and nor does the legislation intend any vote of no confidence or removal of the Justice Minister to occur. The removal of the Justice Minister would not result from some popular mood in the Assembly. The removal would first require that 30 Members of the Assembly—of course, they could come from one party—would table a motion, but that motion would have to command cross-community support, so it would not be a case of one party or even a couple of parties simply taking umbrage against the Minister. Surely, a frivolous removal of the Minister would not be possible.

Again, I say to the hon. Gentleman that we are not just talking about frivolous removal. We could be talking about removal for very good reason. It might be a substantial political issue that commanded broad public support, as these situations often can, on a day-to-day basis. He says, “Would not be removed, would not be removed, would not be removed”, but I say “could”. From the point of view of the Minister’s position in the Assembly, that is unacceptable, because it is not a stable position.

Surely this Minister would be more protected than any other Minister, because a nominating Minister can sack any Minister from his party at any time. One person can sack that Minister. But how could anyone defend a situation where the Justice Minister has lost the confidence of the House? Why would he be expected to stay?

I put that question back to the hon. Gentleman. I have spoken to number of Members of the Legislative Assembly concerning the position of the hon. Member for East Antrim (Sammy Wilson) and his comments on climate change. [Interruption.] He may not have lost the confidence of his own party, but I do not detect a great deal of confidence among the other parties. There is also the position of Catriona Ruane. I do not think, all things being equal, those Ministers could truly be said to maintain the full confidence of the Assembly. It is a consequence of the way in which the Executive is constituted that these issues are never properly tested, because everybody knows that the Ministers are impregnable. If those Ministers are impregnable, the Justice Minister should be put on exactly the same footing.

It is highly unlikely that an Alliance Minister would take the job on in these circumstances. If the Secretary of State devolves criminal justice in such a way that an Alliance Minister will not take it on, what is the point of doing it at all?

The hon. Member for Thurrock (Andrew Mackinlay) seemed to think that he had prevented me from speaking earlier and consequently had a guilty conscience. I assure him that I will speak to him afterwards. No, I am joking. His conscience can be clear, because it is the Government who introduced the guillotine, and they are to blame. It was impossible for hon. Members either to speak or to speak for the length of time that they might have wished. I shall be brief, but I hope that you, Sir Michael, will give me some leeway.

I want to make it clear that the DUP’s position on policing and justice has been consistent. Furthermore, it is well known to Members of this House and to the public in Northern Ireland. We support the devolution of policing and justice powers, as long as it is done in the right way, at the right time, under the right circumstances and within the right framework. That has been our approach, and it is the right one. It is a measured approach that gives the greatest chance of success in the medium and longer terms.

indicated dissent.

The hon. Gentleman shakes his head, but members of his party are represented on the Committee.

The Committee went on to say that following a period of operation, and prior to May 2012, the arrangements could be reviewed, that permanent arrangements would be put in place by May 2012, and that there would be no fall-back arrangements. That, it said, would require the political parties to agree a way forward by that time.

The hon. Gentleman cites the report, but misrepresents the SDLP’s position. We did not endorse that position, as was reflected in the debate in the Assembly. We tabled many amendments in the Committee that were not taken.

I take it, then, that the hon. Gentleman is saying that his party voted against in the Committee.

The Committee also stated in paragraph 36 that for the duration of the interim arrangements—until May 2012—the DUP and Sinn Fein would not nominate any Member from their parties as the Minister of Justice.

Those recommendations reflect and uphold a key DUP position. What would they mean in real terms? I notice that the SDLP claims that all this means the tearing up of the Belfast or Good Friday agreement. I understood, however, that that agreement had been binned once the St. Andrews agreement came in; indeed, only this morning the leader of the SDLP made that very point on BBC Radio Ulster.

I do not know why anyone is surprised that the DUP should be in the business of dismantling any old and failed system. It is important that we in Northern Ireland get this issue right. It is important that policing is dealt with correctly because we have to face many major policing problems in the coming months and years. As has been mentioned today, there is a massive shortfall—possibly running into hundreds of millions of pounds—in relation to the policing budget.

I endorse what my hon. Friend the Member for South Antrim (Dr. McCrea) said. We will oppose the SDLP amendments.

I want to deal first with amendments 5, 6 and 8, tabled by the hon. Member for Tewkesbury (Mr. Robertson). I have to say that they are rather strange. His first amendment refers to a situation in which no Justice Minister has been appointed. If that happened before 2011 under devolution, what would the fall-back position be? Would the Secretary of State take over the post? If, after an election in 2011, the post could not be filled, what would happen?

Of course, we would be looking for a Minister only if there had been agreement and there was sufficient confidence that we could devolve policing and justice in Northern Ireland. That would require us to be assured that there was confidence in the community not only that the Assembly would exercise the powers but about the person likely to be appointed Minister. That would be determined by our knowing which party or person was likely to be acceptable. The amendment would require us to consider agreeing to devolve policing and justice and then hope that we might be able to sort out who the person was going to be. That scenario is never likely to happen.

I turn to the hon. Gentleman’s second amendment. We can prepare for the first step in devolving policing and justice following an election in 2011 and see whether we can agree a suitable candidate, but an arrangement could be put in place before 2011 that might not be possible thereafter because of the outcome of the election. My right hon. Friend the Member for Belfast, East (Mr. Robinson) has made it clear that my party wants policing and justice to be devolved only if there is long-term stability and confidence that it will be able to continue.

Let us envisage the situation that the hon. Member for Tewkesbury suggests—that we cannot agree on someone to take over as Minister. Six months is a very long period to leave a Department without someone in charge, but if we shortened the period and said, “If, after two weeks, you haven’t got a Minister, you’ve got to have somebody in charge of the Department, so let it be the Secretary of State”, that would be an odd, and very dubious, constitutional position. A threat of powers reverting to Westminster, with Westminster looking after the Department for much longer, would concentrate minds much more effectively than the possibility of the Secretary of State taking over the powers, even if we accepted that dubious constitutional arrangement.

For those reasons, I do not believe that the amendments are necessary, or that in the worst-case scenario they would be the best way forward. The default position whereby powers would revert to Westminster would be more effective in concentrating minds.

Amendments 3 and 4, which were tabled by the Liberal Democrats, deal with loss of confidence in a Minister. Under existing arrangements, there are no consequences to somebody putting down a motion of no confidence—people stick down a motion of no confidence just because they do not believe something that somebody else believes. If a motion of no confidence does not have to be tested, people stick them down rather frivolously; provided one keeps the support of the nominating officer, such frivolous behaviour can go on. I see that my hon. Friend the Member for Upper Bann (David Simpson) is looking at me; I do not know whether that is because I have lost his confidence. [Interruption.] I will not push that point too far.

The mechanism for appointing the Justice Minister requires cross-community support and the support of the Assembly. If that is the method of appointment, surely we should use the same method when we no longer wish that Minister to be in place. I was appointed a Minister because I had the confidence of the nominating officer; equally, I can be removed if I do not have the confidence of that officer. If someone has been appointed Justice Minister because they had the confidence of the Assembly on a cross-community basis—not because one person said that they would be a good person for the job—why would it not be effective to be able to remove them through that same mechanism?

The hon. Gentleman has moved on from the point on which I wanted to intervene, which was the fact that he clearly feels that motions for removal are moved capriciously or frivolously. Should the House assume that we would have his support for our amendment 3, which allows the Assembly to amend its Standing Orders to limit the number of removal motions that could be moved during a period that might be prescribed in the Standing Orders?

There is a limiting mechanism already, which is twofold. First, for a motion to be tabled in the first place, the Minister would not have to have annoyed one person, or a small group of people; the Minister would have had to have taken decisions or acted in such a way that he or she had annoyed at least 30 people. For that motion to be pursued, the Minister would have had to have lost the confidence of the 30 people who had signed the motion, and cross-community support from throughout the Assembly. That Minister would have had to have annoyed people from the Unionist side and the nationalist side of the Assembly. I cannot see anything more limiting than that, and in those circumstances it is unlikely that there would be a host of motions for frivolous reasons, such as the Minister making a wrong decision about how money should be spent or about who should be appointed. There would have to be more serious grounds than that.

Does my hon. Friend accept that that mechanism is already available for other uses in the Assembly? It has never been used, despite the instances that have arisen. There was no attempt to use it against him for his views on climate change, and it was not used against the Minister of Education for her lack of direction on academic selection. It could have been used in either of those cases, for political reasons or for the purpose of disengaging the Minister concerned, but it has never been used yet.

I believe that the reason it has not been used is the very reason that I have given. I therefore believe that amendment 3 is unnecessary, because there are already mechanisms in place to prevent the situation that it envisages from occurring.

I turn to the Social Democratic and Labour party’s amendment 21, which would require the nominating officer’s consent to a Member’s nomination as Justice Minister. I suppose that a lot of the matters that I have mentioned are interlinked. The whole point of the method of appointing the Justice Minister is that it is not to be a party decision or an appointment made on the basis of a preference expressed by one person, the party nominating officer. It is to be made by the Assembly because it has a particular reason to have confidence in the person chosen. The fact that policing and justice was not a devolved matter in the first place indicates that it was a much more sensitive issue than any of those that are currently being addressed by the Executive and by Ministers and Departments of the Northern Ireland Government. The appointment is to be made not by the nominating officer but by the Assembly in a cross-community vote. The requirement of the nominating officer’s consent therefore not only seems unnecessary but would give the impression that the Minister was in post only because he commanded the support of that one individual, rather than because he had the support of the Assembly.

That is also the reason why I do not accept the need for the Liberals’ amendment on the removal of the Justice Minister. It will be a sensitive post, and removal from it will require a large number of people in the Assembly to have not just been annoyed by the Minister but totally lost confidence in him. It is important that that mechanism is in place, given the sensitivity of the post. It will be a different post from others, and the Minister will be appointed in a different way and require a different level of support. Equally, he must therefore be held to account in a different way. For that reason, we will not wish to support the amendments.

I begin by thanking hon. Members for their support on Second Reading, which sent an important message from the House.

Clause 1 provides for schedule 1, which makes provision for the new departmental model proposed by the Northern Ireland First Minister and Deputy First Minister. The Bill will insert that model into the Northern Ireland Act 1998, in addition to the existing models. It does not require that it be used, but simply adds it to the menu.

Schedule 1 is split into three parts. Part 1 deals with preliminary issues, in effect positioning the schedule within the list of excepted matters in schedule 2 to the 1998 Act. Part 2 amends section 21A of, and schedule 4A to, the 1998 Act to make provision for the new departmental model. The defining features of that model are that it would consist of a single Minister, nominated by any member of the Assembly, elected by a cross-community vote in the Assembly and removed in the same way. The Justice Minister would not count towards parties’ allocation of seats on the Executive under the d’Hondt formula.

I recognise that concerns have been expressed in a number of quarters about whether the arrangements provided for in the Bill for appointing and removing the Justice Minister are appropriate and proportionate. I will try to deal with those concerns, but let me begin by saying that the Government take them very seriously. We understand why hon. Members may have concerns, but I hope that it will be possible for me to alleviate some of them.

Amendments 19 to 21, standing in the name of the hon. Member for Foyle (Mark Durkan) and his party colleagues, would require any Member nominated for the post of Justice Minister to have the consent of the nominating officer of their party before that nomination could take place and would provide for the nominating officer of the relevant party to have the ability to dismiss the Justice Minister.

The role of the nominating officer in the process of appointing and removing the Justice Minister is not a new idea, as has been said this afternoon. Indeed, it was at the hon. Gentleman’s suggestion that such a role was made a feature of the other models set out in the Northern Ireland Act 1998. However, the model that we are setting out in the Bill is not bound to reflect what happens in the other models, and such a role as proposed by the hon. Gentleman was not a feature of the model set out in the Assembly and Executive Review Committee report, which was approved by the Assembly on 20 January. In bringing forward legislation setting out that model, the Government have rightly been guided by the recommendations of that committee and by the views of the First Minister and Deputy First Minister, as co-chairs of the Executive.

I recognise that the Assembly’s endorsement of the AERC report was not unanimous—I am sure that the hon. Gentleman would wish to draw that to my attention—and that concerns were expressed during the debate on that report. However, the fact remains that the report—and, therefore, the model set out in the Bill—was approved in a cross-community vote in the Assembly by 51 to 16. That is a significant seal of approval for the model from the democratically elected representatives of the people of Northern Ireland. Therefore, any departure from the structure set out in that report and endorsed by the Assembly would be a departure from the wishes of the Assembly. It is for that reason that we should accept the wishes of the democratic majority in the Assembly and not accept those amendments.

Amendment 7, which was tabled by the hon. Member for North Shropshire (Mr. Paterson) and his colleagues, also relates to the appointment of the Minister. The amendment would prevent the Justice Minister from taking up office until he had made

“a solemn declaration to respect the operational independence of the Chief Constable…and…judiciary”.

I understand the basis for amendment 7 and support the sentiments behind it. The protections that it seeks, however, are already provided elsewhere in legislation. Section 1 of the Justice (Northern Ireland) Act 2002 already places a duty on those with responsibility for the administration of justice to uphold the continued independence of the judiciary, while the pledge of office contains a commitment to uphold the rule of law, based as it is on the fundamental principles of fairness, impartiality and democratic accountability. The Government do not believe that it would be appropriate to replicate guarantees that are already provided elsewhere in legislation. Similarly, we believe that the Justice Minister should be subject to the same pledge as the Executive Ministers.

Amendments 2 and 4, tabled by the hon. Member for Orkney and Shetland (Mr. Carmichael), pose a number of interesting questions. It is therefore appropriate to say a word or two about his remarks about the Justice Minister. He put forward the name of an MLA, but it is not for me, as the Secretary of State, to decide who the First and Deputy First Ministers, the Executive and the Assembly choose to be Justice Minister. What we are debating this afternoon is a model that can be used. I advocate that he shows a little caution, rather than perhaps being too predisposed at this stage to assume who may or may not be chosen. Yes, candidates are talked about, but what matters now is creating the model. It is not for this House to decide who should make that decision.

The Secretary of State will recall that I made that very point in my remarks on Second Reading. However, the model that we put in the Bill must be stable and sustainable, and I put it to him that what we have here is not.

Let me try to find a way to come back to that.

Amendment 2 seeks to prevent the Assembly from resolving to remove the Justice Minister in the transitional period up to 1 May 2012. I think that the hon. Member for Orkney and Shetland would argue that that is for reasons of fairness and sustainability, to use the term that he has just used. Amendment 4 provides that the Justice Minister can be removed only if the Assembly resolves that the Minister has been convicted of a criminal offence; has become bankrupt or made an agreement with his creditors; is not committed to non-violent and exclusively peaceful and democratic means; or is otherwise unable or unfit to discharge his functions. Those are all issues that I think we can understand, and the hon. Gentleman puts them forward in the context of pursuing fairness and stability. Let us see whether they will provide those qualities.

As I have already said, the arrangements in the Bill relating to the appointment and removal of the Justice Minister reflect the explicit recommendations of the Assembly and Executive Review Committee, which were voted on and endorsed by the Assembly on 20 January. What would happen if the House were to accept an amendment that railroaded a decision made in the Assembly, on the basis that the hon. Gentleman just did not like it, and that it could be unfair? A democratic majority on the Assembly and Executive Review Committee has considered the provision and produced a report, and the matter has been debated in the Assembly. It was voted on and was passed not by a small majority but by a significant one. Can we really say, “I don’t think that’s good enough”? If the test is to be stability, that would be the quickest way of installing instability at the very beginning, before those in Northern Ireland have even begun to discuss what shape or form the Justice Department might take.

May I remind the Secretary of State that, on many occasions in many debates in this House, when right hon. and hon. Members and I were opposed to proposals that we were unhappy about arising from the Belfast agreement and other initiatives, we were told time and again by the Liberal Democrats that we had to accept them because a majority had voted for them? Are there not double standards operating here? [Interruption.]

rose—

I acknowledge that, but I think that the hon. Member for Orkney and Shetland wants to intervene as well.

I think that the hon. Member for Foyle (Mark Durkan) has given the right hon. Member for Lagan Valley (Mr. Donaldson) his answer. He said that the instances to which the hon. Gentleman refers were all to do with the referendum. However, there is a constitutional principle at stake here: it is this House and this Parliament that devolve power. While any indication from the Assembly is highly persuasive and certainly not to be dismissed lightly, the final decision rests with us. We do not subcontract our responsibility in that way.

With huge respect to the hon. Gentleman, we have not devolved our responsibility. I am not asking the House to devolve responsibility this afternoon. I am asking it to add an additional model to the existing number of models, from which the Assembly will be able to choose, if it so wishes, to set up and use as a model for a Department of Justice. I remind the hon. Gentleman of the democratic structure that this House democratically put in place in previous legislation, which means that, even if the Assembly manages to find agreement and establish a Department of Justice, it will be up to the First Minister and Deputy First Minister to put forward a motion in the Assembly and for the Assembly to vote on it, after which—the hon. Gentleman is right—this House will have to make a decision to devolve. He really must separate out what is being done in this legislation with what might happen if the democratically elected Members of the Assembly at Stormont decide at some future date to exercise their authority.

May I encourage my right hon. Friend to continue along the path and treat what the hon. Member for Orkney and Shetland (Mr. Carmichael) has said with just a pinch of salt? We regularly get lectures from his party about issues that have a majority in the Scottish Parliament; that should dictate what is happening here, whether we are talking about opposition to identity cards or any other issue. My right hon. Friend is going down exactly the right path, and he is correct to say that, in the current circumstances, rejecting what the elected members of the Northern Ireland Assembly recommended to us after considering the issues in detail would be going down the path to instability.

I am grateful to my hon. Friend for that intervention.

To pick up the remarks that the hon. Member for Orkney and Shetland made at the beginning of his Second Reading speech and at other points this afternoon, he has been a very candid friend in this entire process. The amendments are entirely noble in seeking to probe the matter, and I will try to reassure him. I know that his interest is, in the end, only in securing stability in Northern Ireland and nothing other than that.

The hon. Gentleman has in mind—I do not know whether this is true of the First Minister and Deputy First Minister, the Assembly or anybody else in Northern Ireland—which candidate he prefers. He has mentioned David Ford, who has been referred to several times this afternoon. Let me say a few more things about the amendment in the hope that the hon. Gentleman will be persuaded, on balance, not to press it.

We all have enormous respect for David Ford and recognise the role that he has played. However, we must put on record the opportunity that he had to play a role when he and his Alliance party colleagues spoke in the debate in January. The hon. Member for Orkney and Shetland has raised the principled point that it is important for this House to pay significant attention to what has happened and perhaps to run in the opposite direction from the decision democratically taken in January.

If that issue were really the cause of the unfairness and instability that the hon. Gentleman worries about, one would expect the Alliance party and David Ford to make quite a lot of it, and one would certainly expect it to have featured centrally in David Ford’s remarks in the January debate. With that in mind, I re-read last night the Hansard report of that debate. I looked to see what was said and particularly at what David Ford said. In fact, he did not say a word about this particular issue. He said:

“Certainly, my party broadly welcomes the report because there is little in it as it stands with which to disagree.”

As the hon. Gentleman knows, the recommendation for this particular power to be used in this particular way for appointment and removal is explicitly made in the report.

David Ford also said:

“The Alliance Party has always considered the timing of devolution of policing and justice to be condition-led, rather than calendar-led.”

He recognised the importance of the conditions, and he is a man of fine principle. What, then, did he proceed to say? He said:

“By any stretch, however, the point has been reached when progress must be led by the calendar and conditions. In that context, it is pleasant to be able broadly to welcome such a constructive and positive report.”

He also said:

“The Alliance party wants the devolution of policing and justice to happen as soon as possible and practicable.”

In other words, he provided a great deal of support for the report.

I am simply saying to the hon. Member for Orkney and Shetland that if his concern was such a problem, why did it not appear in the Assembly debate? I accept that the issue is important, but it was not raised in the debate and did not concern those who were present. Given that we are not asking for devolution this afternoon but are merely seeking to create an additional model, we should be very careful before railroading such a consideration through.

If I may say so, the Secretary of State is replying to the debate on the amendments in exemplary fashion. He is, very properly, taking his time to do so, but does not this illustrate the nonsense of today’s timetable? Here we are, considering the first group of amendments. He is behaving as a Secretary of State should—seeking to respond, to persuade, to explain, and to deal adequately and properly with amendments. He has been on his feet since 5.48 pm. No criticism could possibly be directed at him, yet in less than an hour, all debate on the Bill in the House will have finished. It really is not good enough.

I hear the hon. Gentleman, although, as he knows, we had that debate earlier. Indeed, for reasons that I respect, but perhaps do not agree with, it took considerable time that we might otherwise have used.

I am grateful to the Secretary of State for giving way. He is being generous with his time, if little else. I concur with the remarks made by the hon. Member for South Staffordshire (Sir Patrick Cormack) as far as they relate to the timetable, but if this is dealing with amendments in an exemplary fashion, he is setting the bar rather low.

The Secretary of State speaks about respect for David Ford, then deals with his actions in the Assembly debate in a way that I think rather lacks a degree of respect, which I am looking for. If the Secretary of State is seeking to persuade me not to press the amendments, he is going about it in the wrong way. Is he really saying that, because of that one speech, the position of the Alliance party is bound thereafter for all time, or that I, as a Front-Bench spokesman in this House, should necessarily be bound? If that is the height of his argument, it is not impressive.

It is difficult to respond to that rationally, but I will do my best. I simply say to the hon. Gentleman that I am working on the facts and the speeches that were made in the Assembly. It is not my responsibility what Mr. Ford says or does not say; I can only report what he has said. In reporting what he has said, it is perfectly clear to me that he had the opportunity, if this was an issue of such concern, to raise it. With huge respect to the hon. Gentleman, it is not entirely irrational for me to have expected Mr. Ford to raise the issue at that time.

All I say to the hon. Gentleman is that if his criteria are stability and fairness—if they are the two criteria we should operate on—what represents the greater unfairness and the greater instability? Those measures were not asked for in the Assembly. They have not been asked for by Mr. Ford and were not asked for by the Alliance party in the Assembly debate, which was voted on. Those measures are not a fair reflection of where the Assembly is. Therefore, with huge respect, if we choose to depart from that, we will have to accept the consequences. It is my judgment that, for that reason, we should not accept these proposals. However, I ask him to remain our candid friend. I know that he might not like what I have said this afternoon, but there is nothing I can add to what I have already said. For the reason I have given, the Government oppose the amendments, as they constitute a departure from the position that has been agreed.

The Government recognise that there have been concerns that the power could be used vexatiously. That is why proposed new subsection 3D(13) of section 21A of the Northern Ireland Act 1998, as amended, which is in schedule 1 of the Bill and provided for at line 5 on page 7, restricts the circumstances in which a motion for removal can be tabled. It needs either to have the support of 30 or more MLAs or to be tabled by the First and Deputy First Ministers acting jointly. Those filters are the same as those that already apply to exclusion motions under section 30 of the 1998 Act.

Amendment 3 would provide further protection against such vexatious requests by providing that the Assembly’s Standing Orders may limit the number of removal motions that may be moved during any period. However, the power for the Assembly to regulate its own proceedings by Standing Orders is already provided by section 41 of the 1998 Act. It is therefore the Government’s position that such an amendment is not required.

May I add my voice to the attempt to end any doubt on the part of the hon. Member for Orkney and Shetland (Mr. Carmichael) about what may lie behind the appointment of a Justice Minister by the method that is chosen, or indeed the removal of the Justice Minister? Neither the First nor the Deputy First Minister will wish to do anything other than give full support to a Justice Minister, especially a Justice Minister who will have been appointed by a more democratic method than any other Minister in the Executive and who will therefore be harder to dismiss.

If there were any difficulty in the process, of course the prospective Justice Minister could talk to the First and Deputy First Ministers about what lay ahead to ensure a clear understanding of the nature of any potential removal from the job. If necessary, the Assembly itself—not the House of Commons—would have power to change its Standing Orders, through its Committee on Procedures, to make whatever relevant change was necessary.

I think that what the right hon. Gentleman says is entirely fair, but I understand why there is concern, and I only hope that the hon. Member for Orkney and Shetland will find that we can deal with his worries.

Part 3 of schedule 1 deals with the arrangements that will apply during the initial period of devolution, up to 1 May 2012, if this new model is the one selected by the Assembly. Paragraph 6 disapplies, at the point of devolution, the normal requirement to re-run d’Hondt following the establishment of a new Department. Paragraph 7 waives, during the period up to 1 May 2012, the requirement that the Justice Minister be elected within the seven-day envelope set for the appointments of all other Ministers after an election. That avoids the possibility of another election being triggered automatically, and is intended as a prudent transitional arrangement to allow the Assembly flexibility to deal with the issue in the early years of devolution in a way that minimises disruption to devolution.

Amendment 26, tabled by my hon. Friend the Member for Thurrock (Andrew Mackinlay), opposes that provision. I hope that what I have said, and what I will say in a moment, will persuade him not to press his amendment to a vote. I recognise, of course, that there are fears that both after the transfer of powers and after the 2011 election, the Assembly will be unable to agree on whom to appoint as Justice Minister, but a number of amendments put before the House deal with that difficulty.

Amendments 5, 6, 8, 9 and 27 seek to provide that if a Justice Minister has not been appointed six months after responsibility for policing and justice has devolved or six months after the Assembly election in 2011, or if the Department is dissolved in 2012, the Secretary of State shall assume the direction of the Department or of the functions that it previously exercised. Amendment 25, also tabled by my hon. Friend the Member for Thurrock, provides that the Prime Minister should have power to appoint a Member of this House, or of another place, to act as Minister during even a short-term vacancy—due to a fall down the steps of Stormont, for example—in the office of Justice Minister.

Although I acknowledge that having no Justice Minister in place is clearly unsustainable in the long term, if the Assembly were unable to appoint a Justice Minister it would be right for the Government and Parliament to have the maximum flexibility to decide both when and how to intervene if such action were ever required. In my view, it is unhelpful to speculate at this point on exactly what the nature of that intervention might be, and on when it might prove necessary.

Such prescriptive amendments would prevent the necessary flexibility in those extreme circumstances should they ever arise, and for that reason the Government oppose them. However, I am happy to assure the House that, in doing so, we are not claiming that it would ever be acceptable simply to abandon responsibility to people in Northern Ireland in the event of what would effectively be a catastrophic breakdown of confidence. Rather, we are saying that we should have confidence in the parties which have themselves produced this agreement and which have, through their Assembly, produced the report that we hope will become this legislation, and that we should back and have the confidence of the parties behind it.

Amendment 22, tabled by the hon. Members for Foyle, for Belfast, South (Dr. McDonnell) and for South Down (Mr. McGrady), adopts a different approach to the problem of the Justice Minister’s post not being filled. It proposes that in the event of no Justice Minister’s being appointed within seven days of an election, all Northern Ireland Ministers will cease to hold office and will be reappointed by means of the d’Hondt mechanism, including the Justice Minister, irrespective of what other provision the Assembly has previously made for the selection of the Justice Minister.

The Secretary of State has dealt with one of our amendments—that relating to the independence of the judiciary and the police—but he has not really spoken to amendments 5 and 6 regarding the time limit for appointment both now and after an Assembly election. May I invite him to do so?

With respect, I think that when the hon. Gentleman reads Hansard, he will see that I did in fact address that.

In conclusion, let me simply say that I believe these issues were very carefully weighed by the Assembly and Executive Review Committee, that it reached the right conclusions, and that this model will give stability and fairness for this interim period until arrangements for a permanent Department are put in place. It might also be of assistance if I remind the hon. Gentleman that these proposals include a review of the arrangements by the Assembly before May 2012. That should provide some comfort to him, and to other hon. Members who, very understandably, have highlighted issues, but which I believe can, on closer scrutiny, be satisfied.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2

Judicial appointments and removals

Question proposed, That the clause stand part of the Bill.

With this it will be convenient to discuss the following: That schedule 2 be the Second schedule to the Bill.

That schedule 3 be the Third schedule to the Bill.

That schedule 4 be the Fourth schedule to the Bill.

That schedule 5 be the Fifth schedule to the Bill.

That schedule 6 be the Sixth schedule to the Bill.

We are opposed to clause 2, and schedules 2, 3, 4, 5 and 6, standing part of the Bill. In our view, all those provisions deal with the role of the First Minister and the Deputy First Minister in judicial appointments. I wish to make it clear that although the SDLP has never advocated political interference in judicial appointments, we feel it appropriate that there should be some democratic input from the First Minister and the Deputy First Minister.

We have endorsed what is in the criminal justice review, which emerged from the original Belfast, or Good Friday, agreement—namely, a limited political role for the First Minister and the Deputy First Minister. This involved the Judicial Appointments Commission taking the lead role for all appointments below High Court level, but with the First Minister and the Deputy First Minister having the power to require the JAC to reconsider—once only, I hasten to add—in respect of any vacancy and perhaps come up with an alternative or further recommendation. The criminal justice review gave the First Minister and the Deputy First Minister a more limited role still in the senior appointments—the High Court appointments—but we feel that that struck an appropriate balance in order to provide some democratic or political input without necessarily creating political interference. Clause 2 and schedules 2 to 6 end any sort of democratic input in judicial appointments, and that means that we will not have devolution of the responsibility for judicial appointments. Let us be clear that nothing in schedule 6 means that the useful existing arrangements can be, or will be, revived.

Similarly, the criminal justice review provided for the First Minister and the Deputy First Minister to be given a limited role in the removal of a judge, should that ever become necessary for whatever reason. Under the current arrangements, they could manage to trigger a tribunal to consider a difficulty associated with a less senior judge who was appointed, but they could not directly remove an individual judge. Again, the opportunity to trigger has disappeared. Although the criminal justice review was implemented by the Justice (Northern Ireland) Act 2002 and was extended in the Justice (Northern Ireland) Act 2004, all this appears to be gone. I presume—I do not know—that this has been done somehow or other with the agreement of the First Minister and the Deputy First Minister, and their respective parties. I, like my SDLP colleagues, believe that this is the wrong way to go. We believe that the criminal justice review struck the right balance, and I believe that is why this House legislated for that balance in 2002 and 2004. Does the Secretary of State really now believe that the balance struck by those Acts and passed by this House got it wrong somewhere or other? I suggest that clause 2 should not stand part of the Bill.

I shall make a small contribution to this clause stand part debate. It was interesting that the hon. Member for Belfast, South (Dr. McDonnell) advanced the argument that it is wrong to remove certain powers from the Office of the First Minister and Deputy First Minister, although these powers are limited in relation to the appointment and removal of judges. I say that because time and again we have heard members of his party, and perhaps him too, rail against what they describe as power grabs by the First Minister and the Deputy First Minister, and the office that they hold. All sorts of arguments have been advanced in the Assembly, and outside it, about how my right hon. Friend the Member for Belfast, East (Mr. Robinson) and others are out to take ever more powers to the centre and so on, yet here we are, in a situation in which they have agreed to divest themselves of certain responsibilities on the basis of removing any hint—

rose—

I shall give way.

Could the hon. Gentleman perhaps distinguish between short-term abuse or mismanagement by the current office holders and the point that I am trying to make, which is the important and all-embracing nature of this issue? This is about the long-term and about what happens whoever the office holders may be. The fact that the current office holders perhaps do not behave in the most appropriate way is no argument for not doing the thing right.

I am not sure that that intervention really clarifies things or helps to advance the case that the hon. Gentleman made. Indeed, the recent Financial Assistance (Northern Ireland) Act 2009 was a long-term solution to a pressing problem to do with a gap in the powers of the First Minister and the Deputy First Minister, and it was bitterly opposed by the hon. Gentleman and his colleagues even though it will provide hardship relief to many vulnerable people in our communities across the board.

The appointment of senior judges in Northern Ireland is a sensitive and important issue—as is the whole issue of justice and policing devolution, which is why we need to scrutinise it carefully with sufficient time to do so. I agree with others who have said that they are disappointed about the lack of time for proper scrutiny. It is strange that the hon. Gentleman should take the position that he has. I would have thought that most people in Northern Ireland were somewhat reassured by the fact that there should be no suggestion of political interference in the appointment of High Court judges, given the role that they play. The hon. Gentleman talked about a democratic input, but people are concerned that political interference might be brought to bear on such appointments. I have to point out that for positions much less sensitive and important than that of High Court judge, his party has been careful to point out how politicians should be removed from the process of both appointment and removal. I fail to understand the hon. Gentleman’s approach in this case.

My party believes that this process is an advance and will provide reassurance. It helps with confidence building, and people across the board in Northern Ireland will be reassured that politicians will not have an input in judicial appointments and removals. There is an important role for Assembly politicians to play in many other areas, but judicial appointment and removal should not be a matter for party politics. We support this clause as it is an improvement on the current position and it is in line with our party policies and our manifesto commitments.

I wish briefly to place on record our opinion that this part of the Bill is actually the most agreeable, largely for the reasons given by the hon. Member for Belfast, North (Mr. Dodds) and especially given the difficult negotiations that have taken place up to this point. It is my understanding that the question of who appoints the judiciary has been one of the sticking points, and it is therefore important that politicians are taken out of the process of selection or dismissal of the judiciary. The principle of separation of powers comes to mind, but, given the sensitive situation in Northern Ireland, this is the best way forward. I am therefore afraid that we cannot support the hon. Member for Belfast, South (Dr. McDonnell) if he presses this issue.

I have a very long speech, but the House will be delighted to learn that I do not intend to use it all.

I thank the hon. Members for Tewkesbury (Mr. Robertson) and for Belfast, North (Mr. Dodds) for their support. The phrase used by the latter to describe this clause was “an advance” and, much as it grieves me, I have to disagree with my hon. Friend the Member for Belfast, South (Dr. McDonnell) on this point. In the discussions that we have had today, the issue of independence has been at the forefront of our minds in relation to other matters. Clearly, in the separation between judicial appointments and removal on the one hand and the political process on the other, there is always a delicate balance to strike. It is important that we strike it in the right place—and in this context, that we strike it in the right place for Northern Ireland.

We now come to amendment 18.

With the permission of the House, I should like to ask leave to withdraw the amendment.

I am grateful to the hon. Gentleman, but silence would have effected the same result.

Clause 3

Miscellaneous Amendments

I beg to move amendment 10, in clause 3, page 2, line 17, at end add—

‘(4) Section 22 of the Justice (Northern Ireland) Act 2002 is amended as follows—

(a) for subsection (2) substitute—

“(2) The Attorney General for Northern Ireland shall be appointed by the Lord Chief Justice and the provisions of section 5 (as amended) shall have effect for the procedure governing such appointment”.

(5) In the Justice (Northern Ireland) Act 2002 omit section 41.’.

With this it will be convenient to discuss amendment 11, in schedule 3, page 15, line 12, at end insert—

‘(11A) In section 42 for subsection (1) substitute—

“(1) The Director must exercise his functions under the superintendence of the Attorney General for Northern Ireland in relation to devolved matters and the Advocate General for Northern Ireland in relation to retained matters and is subject to any directions given by either of them thereunder, but a failure to comply with this subsection does not affect the validity of anything done by or on behalf of the Director.”’.

We have reached the amendments rather earlier than I had anticipated, but I am not complaining about that. Nevertheless, I want to tell the Government that we are still short of time.

We have talked a lot about strengthening the independence of the judiciary. One of our proposals is that the Attorney-General for Northern Ireland should be appointed by the Lord Chief Justice on the advice of the Judicial Appointments Commission and not by politicians. I know that when the right hon. Member for Belfast, East (Mr. Robinson) intervened at an earlier stage, I said that I would return to that point. I have since had a brief word with him to clarify his concern. We have talked about the matter and we feel that our amendment is probably the best way forward. I cannot go into all the details now, as I do not have time, but if we get time later we can return to that point. We have discussed the matter with our shadow Attorney-General. We have had extensive discussions about the amendment and we feel that it would improve the Bill. We believe that the amendment would have the added advantage of strengthening the principle of devolution, as the independent nature of the appointments system, free from political interference, would stabilise a very sensitive process.

We are also concerned about how, under the proposed model, the Director of Public Prosecutions after devolution would be left without supervision or protection by a person accountable to the Assembly. We agree that his role should be made independent and free from politicians, but the Government propose creating a hybrid that, in effect, would leave him entirely unaccountable and unprotected.

The DPP has far reaching powers. His is a very powerful role—for example, he can enter a nolle prosequi application, or decide to prosecute or to stop criminal proceedings—yet he is answerable to no one. He may carry out his functions how he wishes, and he would be removed only in extreme circumstances, such as if he were totally failing to carry out his role. We do not believe that that should be the case. The DPP, like other members of public bodies and the judiciary, should be capable of being held accountable. We propose that he should enjoy the supervision of the Attorney-General for Northern Ireland on devolved matters, and of the Advocate-General on reserved matters.

Our amendment would have the added advantage of providing the DPP with a colleague who could speak for his Department in the Assembly. In Great Britain, the Attorney-General is a member of the Government and can speak in Parliament on behalf of the Crown Prosecution Service, so we feel that the DPP should have the same protection in Northern Ireland. We feel more strongly about this part of the Bill than about most others.

Has the hon. Gentleman had time to consider how he can square the proposals in his amendment with the advice given to the review of the criminal justice system in Northern Ireland? That gave very clear indications as to how the legislation should be set out.

We have not had a huge amount of time, but we have studied the matter to the extent that we were able. We are still persuaded that we are putting forward a better argument.

I know how strongly the hon. Gentleman feels, and I hear that he may be proposing to divide the House over this amendment. That would matter a great deal, as the signal that that would send out is so important.

The advice to which I am referring makes it very clear why the review decided that the separation should take place in the way that is set out in the Bill, and why it should be structured as we propose. The review was carried out in 2000 and published in 2002, which means that, even if they have not drawn it to his attention before today, the hon. Gentleman’s advisers have had several years to look at it. His amendment would tear up the proposals in the Bill. Why, given the importance of the future and stability of the criminal justice system in Northern Ireland, does he choose to advocate that?

Well—

Will my hon. Friend give way?

Certainly.

I thank my hon. Friend. Does he agree that the model being adopted is more or less the same as the one that exists in the Republic of Ireland? The model that he is talking about is more like the English one.

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Order. I have to maintain some semblance of order here. The hon. Member for Tewkesbury (Mr. Robertson) was taking an intervention from the hon. Member for Huntingdon (Mr. Djanogly), so I think that he has to be allowed to respond to that before he can take any further interventions.

I can respond very simply to my hon. Friend the Member for Huntingdon (Mr. Djanogly). We have of course discussed the matter, and I agree entirely with him.

Surprise!

Our great difficulty with the Bill as it stands is that we believe that the DPP will be accountable to no one, and we cannot accept that. We also see that he will be completely unprotected by anyone able to report to the Assembly. That is the basis for our argument.

My hon. Friend the Member for Huntingdon has momentarily left his seat, but I know that he will be seeking to catch your eye, Sir Alan. Perhaps he and the Secretary of State will be able to attack each other without me having to act as referee, but I have set out the basis for our objection to the Bill as it stands.

I am always delighted to engage with the hon. Gentleman, but with huge respect, given the importance of the issue, the signal that the amendment sends and the work of the criminal justice review, before he decides to divide the House, may I suggest that if he and his advisers are not up to speed with the criminal justice review—it can happen to any of us—they take the time to get up to speed, before we send what would seem to be a very destabilising signal to the criminal justice system in Northern Ireland?

I am grateful for the way in which the Secretary of State is attempting to persuade me not to press the amendment to a Division, but we have discussed the issue as far as parliamentary time would allow. He tried, very gently, to persuade me not to push the case, so I will respond as gently as I can: we have all been put in a difficult position, not only by today’s unnecessarily tight timetable, but by the timetable under which the Bill was laid before Parliament. I know that the Secretary of State delayed its introduction for one week, but we still had very little time to discuss it. Nevertheless, we have certainly consulted the document to which he refers, and we are concerned about the fact that the DPP would be in a difficult position if our amendment were not carried.

I want to be helpful. I understand my hon. Friend’s concern, and I admire his assiduous work for Northern Ireland considerably, but we are in a very unsatisfactory situation. The timetable is ridiculous. Would it not be sensible to confer with our friends in the other place, and then perhaps table an amendment? [Interruption.] If I could have my hon. Friend’s attention for half a second, if there is to be a Division, let it be after further mature consideration in the other place.

I understand my hon. Friend’s concerns on the matter. We have carried out a great deal of consultation on the subject. The advice that we were given, which may contradict the advice in the document to which the Secretary of State refers, was that we really should revisit a situation in which the DPP is unsupervised and unprotected.

I genuinely really want to help the hon. Gentleman. With huge respect, again, the criminal justice review is not just some document, or some piece of consultation. It is the document on which much of the present and future judicial system in Northern Ireland is based. If the hon. Gentleman’s advisers have failed to consult the document—they have had seven years to do so, and not just the afternoon—I honestly advise him not to press the amendment. It is in the interests of the people of Northern Ireland that he gives himself and his advisers time to reflect on the matter.

I understand that we have 17 minutes left, and I know that one or two other hon. Members wish to contribute to this debate. Of course, we will listen to what they have to say, but I think that I have made the case for what we are proposing, and I shall leave the matter there.

I will not detain the House long. I have a lot of sympathy for the predicament in which the hon. Member for Tewkesbury (Mr. Robertson) finds himself. The Secretary of State is right that the review has been around since 2002, but it is only 10 days ago that we knew how it would affect the legislation. I do not think that the hon. Member for Tewkesbury is to be criticised for probing the issue in the way that he has done.

I come to the question as a former career prosecutor. My experience informs me that the independence of the prosecution service is important. The reasoning behind the conclusions of the review were sound, and they ought to be supported. They should not be dismissed lightly. There is certainly a case to be made for ensuring proper accountability for the Public Prosecution Service, particularly in respect of its use of resources. That accountability is best done as it is in the Scottish model by the Lord Advocate answering questions in Parliament. I do not know whether the DPP has some audience rights within Stormont. If not, that would be the obvious cure for the defect identified by the hon. Gentleman and by others. Beyond that, the independence of the prosecution services in going about their work is of supreme importance and I would caution the hon. Gentleman against pursuing this matter too far.

It is sufficient to say that I am not entirely persuaded by the argument that has been advanced so far. I will speak for only a few minutes, which may give the opportunity for a strategic withdrawal to be arranged, which would be sensible in the circumstances.

The amendment that I want to touch on relates to the Attorney-General. The Opposition spokesman is right that I intervened earlier to say that the Lord Chief Justice would be put in a difficult position by that proposition. The Lord Chief Justice would be asked to appoint an Attorney-General—one of the QCs, no doubt, who would be a member of the Bar—and any time that the Attorney-General would appear before the Lord Chief Justice, the Lord Chief Justice would be hearing the case from his chosen one, the one whom he had favoured, and unquestionably there would be people who would doubt the independence of any decision that would arise therefrom.

Does the hon. Gentleman not accept that there are conventions that deal with such conflicts?

That would mean removing the Lord Chief Justice, the most senior Law Officer, from the most important cases; no doubt, those being taken in defence of the Government. That would not be a wise move.

Much of today’s debate has been on what appeared to be the unanimous decision of the House that greater independence was needed and that politicians should not be in the job of appointing judges. Now we have the proposition that the judges should appoint those who will go into the political arena to answer questions in the Assembly and to represent the politicians in the Government, and that is not a good way forward either.

The actual outcome was one of the easiest for the Deputy First Minister and I to come to an agreement on. I think it took only a few hours for us to agree who the best person might be for the post of Attorney-General when the moment came to make such an appointment, and we publicly said that our choice was John Larkin, QC. I have not heard one word of disagreement from any section of the community about that choice. The politicians were able to make that choice in a way that was responsible and would have merited confidence in the community. I suspect that the proposition offered by the Conservative party would not do that.

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I am sorry to have to say it in open Committee to the hon. Gentleman, but it is not permissible for two members of the Front-Bench team to speak in the debate or to intervene, so it is rather unusual for him to seek to speak when the amendment has already been moved from the Front Bench.

On a point of order, Sir Alan. My hon. Friend the Member for Huntingdon (Mr. Djanogly) is not a member of the Northern Ireland Front-Bench team.

The instruction given on the Bench Note is that the Committee stage Front-Bench team would comprise the hon. Members for Tewkesbury (Mr. Robertson) and for Huntingdon (Mr. Djanogly). As the amendment has been moved from the Front Bench, we must rest at that.

My hon. Friends the Members for Tewkesbury (Mr. Robertson) and for North Shropshire (Mr. Paterson), who speak from the Opposition Front Bench, are being given advice by their adviser, my hon. Friend the Member for Huntingdon (Mr. Djanogly), who sometimes speaks from the Front Bench, so they cannot hear the advice that I am trying to give them, but I earnestly beseech them to recognise that, after due consideration, they have hit upon an important point, which clearly merits further consideration. I hope that, having heard what the First Minister said—I am sure they did—they will take carefully to heart his gentle, persuasive advice, have further discussions with our noble Friends who will debate this Bill for two whole days and arrange for a proper debate on a similar amendment in another place.

In the meantime, due consideration could be given to all the literature on this subject—particularly to the seminal document to which the Secretary of State referred. It can then be decided whether the proposal is sensible or whether it would be better to make another one. I urge my hon. Friends to ponder those points, and not to press for a Division.

It is time for a pause, to breathe and reflect. If the hon. Member for Tewkesbury (Mr. Robertson) wishes to intervene to tease this issue out a little further, I will be more than happy to give way. However, like the Secretary of State, I have to put it to the hon. Gentleman that if he were to insist on a vote, he would seek to overturn a fundamental principle and part of the Northern Ireland criminal justice review of 2000 and the subsequent legislation. That would be a significant step.

The fact that there was a review several years ago does not bind us today. That said, we try to deal with these matters on a cross-party basis. Given the advice of the Secretary of State, the Minister, the First Minister and the Chairman of the Northern Ireland Affairs Committee—and given the misunderstanding, no doubt our fault, that led to my hon. Friend the Member for Huntingdon not being able to contribute—we would like to reserve the right to return to the issue in another place. I will not press the amendment to a Division.

I am grateful for that. The hon. Gentleman and I spend a lot of time in Committee together, and I have always found his approach to such issues entirely practical. I thank him for that. The issue is as significant as I have set out, so I am pleased that he is taking further time to reflect. As Members of the other place consider the issue in the days ahead, I am sure that they will look at what the review document says.

The Minister keeps referring to the review. Although we appreciate that there has been a review and although, in contrast to what the Secretary of State said, we did read it, does the Minister not appreciate that we are still entitled to debate the issue? The Minister speaks as if we are not allowed to.

Any party is, of course, entitled to raise debate in this place; that is what this place is about. However, we also have to respect and recognise that in the process of improvement and change towards peace and progress in Northern Ireland, certain key staging posts have been reached. A very important staging post was the criminal justice review in 2000 and the subsequent legislation that went through the House. We have to respect that. Without that settlement, much development of the criminal justice process in Northern Ireland that has happened since would not have happened.

The question of independence is important. I return to what the document itself says:

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

Indeed, reference was made to Lord Mayhew’s comments during the passage of the Justice (Northern Ireland) Act 2002:

“Given the highly charged atmosphere of Northern Ireland—to use a well-chosen word that appears in the review—it is important that this enormously invasive prosecution arm of the state should be exercised in Northern Ireland by an official who is entirely independent. That is a departure from the current system in England and Wales and in Northern Ireland.”—[Official Report, House of Lords, 13 June 2002; Vol. 636, CWH 93.]

So it is a different system, but a system that, following the review, was felt to be highly appropriate for Northern Ireland. That does not mean that the Attorney-General and the Director of Public Prosecutions do not have a relationship: they do; it is a very strong relationship that is bound by statutory consultation. As I said earlier, there will be robust exchanges between the Attorney-General and the Director of Public Prosecutions in drawing up the code of practice for prosecutors. They have a statutory relationship in terms of consultation but not in terms of superintendence or direction.

I am pleased that the Minister is admitting that we will now be pulling away from the system that exists in this country, which did not seem to come across in his earlier remarks, but who is the DPP going to answer to?

The DPP will be answerable to the Assembly for the use of resources and the administration of its office—that is very clear—but not for individual prosecution decisions, which are entirely for the independent DPP. It is important at the point of devolution that that is made absolutely clear and enshrined in the institutions.

I chaired the Assembly and Executive Review Committee for a time. When we considered these matters, it was our understanding that when the Director of Public Prosecutions presented his annual report he would come to the Justice Committee in the Assembly and be subject to questioning, and the Committee would have the opportunity to consider his report. A degree of accountability is therefore built into the system.

The right hon. Gentleman is entirely right. This does not apply only to producing the annual report. If a Committee, particularly the Justice Committee, wished to take evidence from the DPP, the DPP could be invited to attend and such evidence could be given. Indeed, the DPP gives evidence to Select Committees in this House, as the Chairman of the Northern Ireland Affairs Committee will know.

It is also worth pointing out, further to the intervention by my right hon. Friend the Member for Lagan Valley (Mr. Donaldson), that when all these issues were considered in the Assembly, I do not remember a single Member or party raising any concern on this particular point. The issue of independence, which we discussed in relation to a previous clause, has been accepted in Northern Ireland.

Indeed, it is broadly accepted, certainly in the conversations that I have with the Lord Chief Justice, the Director of Public Prosecutions, or anybody else. The issue of independence is absolutely written through the whole system and is seen as highly significant.

It is not only the DPP who may be invited to give evidence and have to produce an annual report—the Attorney-General, too, may be so invited. Indeed, both will have speaking rights in the Assembly and be able to speak to and respond to Assembly Members, whether in the Assembly or in Committee. There is a very clear structure of relationships both between the Attorney-General and the Director of Public Prosecutions and between those office holders and the Assembly.

The right hon. Member for Belfast, East (Mr. Robinson) touched on the appointment of the Attorney-General and pointed out the difficulties that would be faced were the Lord Chief Justice to make that appointment. There would also be a difficulty given that the Attorney-General has always been seen as somebody who would have a wider advisory role in giving legal advice, perhaps advising the Executive on certain key issues. It would be very uncomfortable, I suggest, for the Lord Chief Justice to appoint the person who would then advise the Executive. Any Lord Chief Justice would approach such a scenario with extreme caution. Of course, it is very important that the Attorney-General has independence, which should be safeguarded from inappropriate political pressure. The appointment of the Attorney-General, therefore, is made jointly by the First Minister and the Deputy First Minister, and the choice of John Larkin is, as far as I can tell, generally and widely welcomed.

As previously indicated, and for the reasons that I gave, we will not press the amendment to a vote. We reserve the right to consider it further over the next few days, but we will not press it to a vote tonight.