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Northern Ireland Bill

Volume 708: debated on Wednesday 11 March 2009


Moved by

My Lords, before I ask the House to resolve itself into a Committee on the Bill, I am sure that the whole House will join me in sending heartfelt condolences to the family of Constable Stephen Carroll, the brave PSNI officer who was shot dead on Monday morning. Constable Carroll died in the line of duty, doing his job protecting the community where he worked. He was murdered by cowards—desperate and isolated individuals who are determined to destroy a political process that is working for and wanted by the people of Northern Ireland. They must not be allowed to destroy or undermine that peace process. I beg to move.

Motion agreed.

Clauses 1 and 2 agreed.

Clause 3: Miscellaneous amendments

Amendment 1

Moved by

1: Clause 3, page 2, line 17, at end insert—

“( ) For section 22(2) of the Justice (Northern Ireland) Act 2002 (c. 26) 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.”

( ) In the Justice (Northern Ireland) Act 2002 (c. 26) omit section 41.”

I, and all Members who sit on this side of the Committee, echo everything that the Lord President said about the ruthless and cowardly killing that took place between Second Reading and today. It is tragic that on the first two occasions when the House has addressed this Bill, we have had to begin proceedings by expressing our condolences in that way. Let us hope that it will not happen again.

I had an opportunity at Second Reading to outline the substance of my amendment. I merely intend to underwrite those remarks by providing your Lordships with a little more detail. In this group of amendments we have Amendment 1 and Amendment 12. It might be helpful to the Committee if I began not at the beginning but at the end, by reading out the text of Amendment 12.

This amendment seeks to amend Section 42(1) of the Justice (Northern Ireland) Act 2002, which refers to the independence of the Director of Public Prosecutions for Northern Ireland. As many of your Lordships are already aware, the subsection reads:

“The functions of the Director shall be exercised by him independently of any other person”.

Amendment 12 seeks to amend Section 42(1) as follows:

“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”.

Your Lordships will be familiar with the relationship between the Attorney-General and the Director of Public Prosecutions in England and Wales and, indeed, at present, in Northern Ireland. This amendment simply mirrors our own constitutional practice. We believe that Section 42(1) needs this amendment because if it were not so, the Director of Public Prosecutions for Northern Ireland is likely to be exposed to an unacceptable degree of political pressure over at least some of the prosecutorial decisions that he will have to make. In particular, I fear that he is likely to be accused of bias. Under the 2002 Act, the director has no access to the Northern Ireland Assembly to explain and justify his prosecutorial decisions.

That brings me to the other amendment in this group, Amendment 1, which is in substitution of Section 22(2) of the Justice (Northern Ireland) Act 2002. It may be helpful if I read out that subsection before I come to the amendment. It states:

“The First Minister and deputy First Minister, acting jointly, must appoint a person to be Attorney General for Northern Ireland”.

So the Attorney-General is appointed, in effect, by a political deal between the two leading politicians in Northern Ireland. That deal does not even have to be sustained or justified by any reference to the Assembly, because there is no requirement in the 2002 Act to refer the deal to the Assembly.

We submit that that subsection should be replaced by the following:

“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”.

Section 5 provides that listed judges, and that includes High Court judges, shall be selected in the following manner. After interviews, they will be nominated by the Judicial Appointments Commission in Northern Ireland. That appointment will then be endorsed by the Lord Chief Justice. That is the selection procedure for High Court judges and below. We propose that that procedure should now be used also to appoint the Attorney-General for Northern Ireland.

I think that it is plain to your Lordships why we have done this. Superintendence works in this country because, although the Attorney-General is a member of the Government by constitutional convention, in our jurisdiction he is nevertheless under a quasi-judicial duty to exercise his superintendence over the Director of Public Prosecutions entirely independently of political pressure. That constitutional convention does not exist in the Northern Ireland jurisdiction, or will not exist once devolution occurs. Therefore, this amendment is intended to inject our convention into the devolved system of justice in Northern Ireland.

Once Amendments 1 and 12 are read into the 2002 Act as a result of amending the Bill today, we will have injected into devolution precisely the same arrangements as we have here. That means that, in an often highly charged situation, the Director of Public Prosecutions in Northern Ireland will have the proper protection in relation to his decisions that our own Director of Public Prosecutions receives here.

The Government have taken issue with this and set out their reasons for doing so in the debate on Second Reading. The basis of the Government’s view is that the 2002 Act is the consequence of an investigation which took place right at the end of the previous century and crystallised itself in to what is termed the Northern Ireland Criminal Justice Review. The review was completed in 2000 although it was not published until 2002. The 2002 Act is, in effect, a carbon copy of the Criminal Justice Review. The Government contend that it would be a monumental mistake to seek in this Bill to change the conclusions of that review, as the Lord President said unequivocally to your Lordships’ House on Monday.

Our response is twofold. The first, which was extremely eloquently expressed by my noble and learned friend Lord Mayhew, is that the review was completed nine years ago and a great deal has happened since then; and it would be a mistake to lash ourselves to the tiller of the review without giving ourselves any room for manoeuvre to respond to the many events that have happened since.

My second response is that, in any case, in one significant manner, this Bill alters the recommendations of the Criminal Justice Review 2000 and the content of the Justice (Northern Ireland) Act 2002. It changes the way in which High Court judges are selected, and much for the better. If your Lordships glance at Schedule 3 to the Bill, you will see that, once judicial matters are devolved in Northern Ireland, judges will be selected by a procedure that differs significantly from the 2002 Act. In the 2002 Act, High Court judges are selected first by the Judicial Appointments Commission, and then endorsed or otherwise by the First Minister and Deputy First Minister. We deplored that at the time and have continued to deplore it in a variety of amending Acts.

I congratulated the Government on what they have done in Schedule 3. The Northern Ireland Bill has removed the First Minister and Deputy First Minister from the selection procedure and replaced them with the Lord Chief Justice of Northern Ireland. This is a very significant change. Here is a major example of the Government being prepared to think again about the 2002 Act. If they can think again about a matter as significant as that, why can they not think again about the relationship between the Attorney-General for Northern Ireland and the Director of Public Prosecutions?

We are of course in some difficulty in dealing with this Bill today, as many noble Lords said at Second Reading. It is emergency legislation and takes place against a backcloth of recent events which give rise to great concern—although not, I hope, about the future of devolution. I remain confident that we will achieve that objective. Certainly, it is not a time to start tearing apart arrangements that have been carefully crafted over a long time, even if some of us disagree with some of those arrangements. After all, the implementation is not yet to take place and we may have other opportunities to change the character of the 2002 Act.

That consideration—together with the fact that under Section 22(2) of the Justice (Northern Ireland) Act 2002, the First Minister and Deputy First Minister have already chosen the person who is to become the first Attorney-General for Northern Ireland under these arrangements—has led the Opposition, despite our strong support for this amendment, to take the view that it would be wrong, at this juncture, to press this amendment to a vote. However, I hope that we will get another opportunity to look at this in calmer legislative circumstances. I beg to move.

I associate these Benches with the expression of revulsion and horror at the murder of PC Stephen Carroll. I have been advised today by the Police Federation of Northern Ireland that it is looking after the family of Stephen Carroll. I have expressed all our heartfelt sympathy to them.

I have a brief comment on Amendment 1. We agree that there could be difficulties if the Lord Chief Justice appointed the Attorney-General. One of the roles of the Attorney-General is of course to give legal advice to the Executive, and it could be very uncomfortable for the Lord Chief Justice to appoint the person who is to give legal advice to the Executive.

On Amendment 12, the Minister in the Commons reassured the House that the DPP is independent and that his independence is written across the criminal justice system. Members from Northern Ireland also said that the independence of the DPP has been accepted across Northern Ireland. We are in some difficulty about whether any specific instances have led the Conservatives to worry that the DPP is not independent, other than that stated by the noble Lord, Lord Kingsland, that there could be an unacceptable degree of political pressure and that the DPP could be accused of bias. In both cases the word “could” made us a little concerned. I should be grateful to hear whether any specific instances have led to their concerns.

Amendment 1 proposes that the devolved Attorney-General should be appointed by the Lord Chief Justice, instead of by the First Minister and Deputy First Minister, as provided for in the Justice (Northern Ireland) Act 2002.

Amendment 12 proposes that the Director of Public Prosecutions should be under the direction and superintendence of the Attorney-General for Northern Ireland and the Advocate-General for Northern Ireland.

These amendments would also mean that a number of functions would no longer transfer from the Attorney-General for Northern Ireland to the DPP on devolution of policing and justice. These functions include consenting to the institution or conduct of criminal proceedings, entering a nolle prosequi, and referring unduly lenient sentences to the Court of Appeal.

I believe it would be inappropriate for a judge to make an appointment to a post that sat in part of the executive arm of government. That would be to undermine a fundamental tenet of the UK’s constitutional framework—the doctrine of the separation of powers. I appreciate the noble Lord’s concern that the Attorney-General should be safeguarded from inappropriate political pressure. In response, I should highlight that the appointment is made jointly by the First Minister and Deputy First Minister. That balance should provide reassurance. The First Minister and Deputy First Minister have also made public who they are minded to appoint to this post, and their proposal has been widely welcomed.

Although the Attorney-General will be appointed by the First Minister and Deputy First Minister, and as such is clearly appointed by politicians, Section 22(5) of the Justice (Northern Ireland) Act 2002 states that:

“The functions of the Attorney General for Northern Ireland shall be exercised by him independently of any other person”.

This is in line with the criminal justice review, which recommended that the Attorney-General should be “a non-political figure” and concluded that an Attorney-General appointed under these arrangements was,

“less ‘political’ than almost all counterparts in other common law jurisdictions”.

The Criminal Justice System Review Report, published in March 2000, was the most important and far-reaching survey of criminal justice in Northern Ireland in more than 30 years and flowed from the Belfast (Good Friday) agreement. The Government do not believe there is evidence to support a move away from these arrangements which were approved by Parliament as part of the Justice (Northern Ireland) Act 2002.

Again reflecting the criminal justice review, the 2002 Act provides for a consultative relationship between the DPP and the Attorney-General for Northern Ireland, and between the DPP and the Advocate-General. This was considered the best way of ensuring visible independence of prosecutorial decisions by the DPP. Indeed, giving the Attorney-General the power of superintendence and direction would be contrary to the criminal justice review. Noble Lords will therefore understand why the Government also oppose the removal of Section 41 of the 2002 Act, which transfers certain functions from the Attorney-General to the DPP. The transfer was provided for in the 2002 Act to ensure that the Attorney-General’s functions would be consistent with his new consultative role post devolution.

This consultative relationship is a statutory obligation. It allows a wide range of matters to be discussed, with a particular duty to consult on the code of practice for prosecutors which informs so much of the prosecution process. I would expect such discussions to involve challenge and a full and frank exchange in both directions. Also under Section 25 of the Justice (Northern Ireland) Act 2002, the Attorney-General may participate in the proceedings of the Assembly. Although it will be for the Assembly, through its standing orders, to set out how this will work in practice, this will provide a line of accountability from the Director of Public Prosecutions, through the Attorney-General to the Assembly. This is in addition to the fact that the DPP is answerable in the Assembly for the finance and administration of the Public Prosecution Service.

Some things have most certainly changed since 2000, when these arrangements were first envisaged. Indeed, a great deal has happened. The reactions to the recent atrocities from both sides of the political spectrum are testament to this. The political progress we have seen since 2000 is something we can all welcome. However, the review group designed these recommendations to ensure that justice could be transferred to the devolved institutions in Northern Ireland on a sustainable basis. The fundamentals of these devolved institutions, including the joint nature of the Office of the First Minister and Deputy First Minister and the mandatory coalition that makes up the Executive have not changed.

As the noble and learned Lord, Lord Mayhew, said at Second Reading:

“It comes down to a question of judgment concerning the atmosphere in Northern Ireland today”.—[Official Report, 9/3/09; col.974.]

I think that we must respect the views and the judgment of the Northern Ireland Assembly.

The noble Lord, Lord Kingsland, drew our attention to the arrangements for judicial appointments and removals, dealt with in Clause 2 and Schedules 2 to 6 to the Bill. Unlike these arrangements, however, the First Minister and Deputy First Minister have not proposed that the post-devolution arrangements relating to the prosecutorial system should be changed. The Government believe that those who will be taking responsibility for the system are the best judge of whether the time has come to move away from the accountability arrangements put in place in 2002. If, in due course, the Assembly decides that the time has come to put in place new arrangements, they will be able to do so. It is not our job today to pre-empt their decision on the substance or timing of such a change.

I believe that with the commitment of those involved, the arrangements in the 2002 Act will ensure an effective relationship between the Director of Public Prosecutions and the Attorney-General and Advocate-General. The arrangements will preserve the director’s independence and promote confidence in prosecutions in a jurisdiction where justice has been a contested space. I am, therefore, extremely grateful to the noble Lord for signalling that he would not wish to pursue these amendments and I ask him to withdraw them.

I do not wish, through remaining silent while present, to be thought to have resiled from the position I took at Second Reading. I recall that, when we had a debate, back in 2002, on the recommendations of the criminal justice review committee, I supported the proposition that is reflected in the Bill, that the Attorney-General should be appointed in that way and that the DPP should be subject to no ministerial supervision. I do think, however, that it is very important to realise that it is not just a question of instances in which a DPP can be brought under political pressure; perception is almost as important in Northern Ireland as fact, and it was therefore entirely understandable and helpful that my noble friend’s amendments should be put forward as alternatives. After all, they reflect a structure that has been tried over very many years in England and Wales and has been found to serve very well, in my estimation. It does, however, as we have just been reminded, turn upon the question of what the political atmosphere is like in Northern Ireland today, because the criminal justice review committee, back in 2002, specifically referred to the highly charged political atmosphere in Northern Ireland as a justification and an explanation for the proposal that it made.

We all know—I add my condolences to those expressed to the family of PC Carroll—that things have taken a very regrettable turn for the worse but we hope that they will go no further in that direction. Therefore, it is very helpful that this amendment will not be put to the vote. As I said on Second Reading, I would be content with either solution. Perhaps the sensible thing is to wait to see how we get on. In those circumstances, I do not think that I have anything more constructive or useful to add to this short debate.

I am most grateful to the noble Baroness for her full response, which, it is fair to say, reflected the observations that she made two days ago at Second Reading. I should like to respond briefly to her remarks, as well as to the observations made by the noble Baroness, Lady Harris.

I cannot overemphasise the degree of isolation of the DPP in the system. I have already drawn your Lordships’ attention to Section 42(1) of the Justice (Northern Ireland) Act 2002 which refers to the obligation on the director to exercise his functions,

“independently of any other person”.

That is starkly underlined by Section 22(5), to which the noble Baroness briefly drew our attention. It states, almost in the same terms as Section 42(1):

“The functions of the Attorney General for Northern Ireland shall be exercised by him independently of any other person”.

To the extent that he makes any remarks about prosecutions—he is allowed only to make observations about the prosecutorial system generally, not about particular prosecutions—he is not in any way obliged to take the view of the DPP. This underpins the degree of the DPP’s isolation.

Moreover, Section 42(3) states:

“The Attorney General for Northern Ireland and the Director may (from time to time) consult each other on any matter for which the Attorney General for Northern Ireland is accountable to the Assembly”.

The Attorney-General for Northern Ireland is not accountable to the Assembly for particular prosecutorial decisions taken by the DPP. So the DPP is forbidden by Section 42(3) from even consulting the Attorney-General if he has some concerns about a decision he is making.

Some concern was expressed—it was cast under the grand principle of “separation of powers”, which I remember being referred to frequently by the Government in the course of the Constitutional Reform Bill—about the selection of the Attorney-General under our amendments as being made by the Lord Chief Justice. Actually, that is not in practice so. We are suggesting that the appointment of the Attorney-General should mirror the appointment system for High Court judges under Section 5 of the 2002 Act, as amended by this Bill. The selection of the Attorney-General would be as follows: the name, after interviews, would be put forward by the Northern Ireland Judicial Appointments Commission. The Lord Chief Justice would either accept it automatically or refer it back. But if the same name is put forward again by the JAC, the Lord Chief Justice has to accept it—he has no alternative. It is exactly the same as the new system for High Court judges introduced by the Constitutional Reform Act. So although the Lord Chief Justice appears to have powers in relation to the selection of judges, in practice the real choice is made by the Judicial Appointments Commission. With respect to the noble Baroness, it is not fair to apply the analogy of the separation of powers to this process.

However, I agree with the noble Baroness on perhaps the most important thing that she said: these are testing times. It may be that we will have an opportunity in future to influence the devolution process on this matter. After all, although we are talking about a devolved Administration, this is an alteration to the United Kingdom constitution and we have a duty to consider it in that context. However, for the reasons that I gave when I moved the amendment, this would not be an appropriate time to vote on it. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Clause 3 agreed.

Clauses 4 and 5 agreed.

Schedule 1: Northern Ireland department with policing and justice functions

Amendment 1A

Moved by

1A: Schedule 1, page 5, leave out lines 7 and 8 and insert—

“(i) made by the First and Deputy First Minister acting jointly, and”

I join other noble Lords in expressing my heartfelt sympathy at the death of Constable Carroll. He was a long-serving police officer, who came from the Irish Republic many years ago to serve in the Royal Ulster Constabulary. He served there with pride for many years, and it is so sad, in what we believed was a new, peaceful era, that he should die at the hands of republican murderers. It is important to note that he joined the RUC at one of its most difficult times and not at a time when arrangements were made to—perhaps I use the word improperly—nursemaid certain people into the police. Instead, when there was a need to serve, he served faithfully.

I feel totally inadequate in the company of noble and learned Lords. For 26 years in Parliament, I had the benefit of the advice of the noble Lord, Lord Trimble. I am not a lawyer, hence my feeling of inadequacy when dealing with technical points that are exceedingly complex and involve a series of pieces of legislation. At the same time, I am deeply concerned that your Lordships’ House is being asked to legislate for a fix. The ideas that are enshrined in the Bill, whatever may appear to be their strengths, are designed to create a very narrow and restrictive approach to justice and policing in Northern Ireland. I believe that the approach is based on a deal that has been done between two major parties to carve up, in their separate interests, what needs to be done in Northern Ireland.

I will attempt in a moment to address the amendments that I propose. In the mean time, we have only to look at five months of inactivity by the Executive in Northern Ireland to realise that the Democratic Unionist Party and Sinn Fein are not brothers in arms—or out of arms—except when it is expedient for them to show some sort of joint approach, as we have seen in the past day or two. That is not the basis on which we should be taking forward legislation that concerns the administration of justice.

My Amendments 1A, 1B and 1C illustrate alternatives to new paragraph 3A(1)(b)(i) in Schedule 1, in which we are being asked to approve a situation where a single Member of the Assembly could nominate the Minister. That is there for a reason. The reason is that if we arrange for one Member to propose who will be the Minister, we do not have the embarrassment for either the DUP or Sinn Fein of having to be seen to nominate someone outside their party. That is unsatisfactory. I do not know which would be best. It might be an idea to put that responsibility on the First and Deputy First Ministers and to test their sincerity in that respect. Alternatively, if we are going to leave it to Members of the Assembly, it should be not just one Member but perhaps eight Members of the Assembly. The third option is that nominating officers from each of the four main parties come together to decide whom they will nominate. That would not let Sinn Fein and the DUP off the hook and out of the responsibility that they should be exercising jointly for the benefit of those in Northern Ireland. I hope that that—inadequately, I know—explains my Amendments 1A, 1B and 1C.

If I may, I shall briefly allude to Amendment 2A, which deals with one of the strangest aspects of the Bill, where the Minister appointed Minister for Justice could in fact be the First or Deputy First Minister. If he were the First or Deputy First Minister, he would for ever have a veto on whether he could be removed as the Minister for Justice. That appears to me to be an injustice.

Amendment 4A deals with the strange provision for a resolution to remove the Minister, where cross-community and separate majorities give the DUP and Sinn Fein power not exercisable by anyone else in any other circumstances. Again, we are being asked to endorse the carve-up of a power. Similarly, Amendment 5A would leave out the words,

“is moved by the First Minister and the deputy First Minister acting jointly”.

In this instance, total power would be given to the leader of the DUP and the leader of Sinn Fein to act in a carve-up.

Those points, I admit, though understood by me, have not perhaps been adequately addressed in technical language. However, they are relevant and applicable. Hence, I ask the Lord President to say whether “made in Northern Ireland”, as the Secretary of State says, actually means “contrived in Northern Ireland”, but put into a form that, in the longer run, will present us with problems that could ultimately cause the Assembly to crumble. I beg to move.

I will briefly speak to two of the amendments tabled by the noble Lord, Lord Maginnis of Drumglass. On Amendment 1C, we feel that there is nothing in legislation to provide that four parties must always be in the Executive. The d’Hondt formula just needs to be applied until all ministerial posts are filled. If one or two parties have a sufficiently large number of Members, that could result in only two or three parties being in the Executive. Indeed, there could come a time when there are fewer than four parties in the Assembly.

Amendment 2A would prevent the First Minister and Deputy First Minister from holding the post of Justice Minister. Although we agree that this probably would not be ideal the first time that policing and justice powers are devolved, there may come a time when it is entirely appropriate. I remind the noble Lord, Lord Maginnis, that my noble friend Lord Wallace of Tankerness, while Deputy First Minister for Scotland, was also the Justice Minister. Although this model is drafted as being temporary and in effect only until 2012, the Assembly could like this model and agree to continue with it after May 2012. In the future, there may be a case for the post being held by the First or Deputy First Minister, so, with regret, we are not able to support the noble Lord in his amendments.

What in fact we are creating—I did not want to reduce it purely to political terms—is a one-issue election forecast for the future, for ever. Once policing and justice are the responsibility of a Minister in the Assembly, one party will be able to argue for the first time, “Vote for us. We may actually have the justice and policing responsibility”. The other party—this is the carve-up between the two parties—will say, “Vote for us, because we are the one party that can prevent Sinn Fein from having the responsibility for policing and justice”. This legislation turns Northern Ireland once again, and more starkly than ever before, into a sectarian society where the electoral contest is purely sectarian.

First, I extend my condolences to the family of PC Stephen Carroll, who was so brutally murdered in Craigavon. Secondly, I declare an interest as an elected Member of the Northern Ireland Assembly.

The Bill is one of eight models that have been designed to establish a new Northern Ireland department to exercise functions that consist wholly or mainly of devolved police and justice powers. This model has received the majority support of the review committee at the Assembly. More important, it has been passed by the whole Assembly by a cross-community vote. That means that more than 50 per cent of the Members who are designated as unionists, and more than 50 per cent of the Members who are designated as nationalists, have given their approval. It is very important, particularly at this time, that the Bill is passed through this House as quickly as possible without amendment, so I do not intend to refer entirely to the points made by the noble Lord, Lord Maginnis.

This is a difficult situation, a difficult Bill and a difficult time. No one is more aware of that than I am, having visited the Province yesterday. I visited all the sites, the chief constable, the head of the Army and, indeed, the chief inspector and the policemen down at Craigavon, and I sent my personal condolences to them through two young policewomen.

I am not taking an active part in this, any more than my noble friend Lord Kingsland is. His arguments are sound, and I shall have a few more later. My reason for not supporting the noble Lords, Lord Maginnis and Lord Browne, is not intellectual; it is purely because I believe that, given the situation that we are in, now is not the time to start dissecting a Bill as important as this. I still think that it is an awful shame that it did not have longer in the Commons and here, but that is where we are and where we must stay and go from. Although it is not really my job, I ask the noble Lord, Lord Maginnis, whether he would be good enough to withdraw his amendment.

I am grateful to all noble Lords for their support and for the actions that they have taken in support of the family of Constable Carroll in Northern Ireland.

I recognise that noble Lords have concerns about how the Bill provides for the appointment and removal of the justice Minister under this new model, and I have heard the concerns expressed by the noble Lord, Lord Maginnis. I must stress that I do not agree with his assertion that the Bill is all about a deal. It is not. As the noble Lord, Lord Browne, quite rightly said, it reflects an agreement between the democratically elected representatives of the people of Northern Ireland, as set out in the agreement that was announced by the First and Deputy First Ministers in November and built on by the cross-party Assembly and Executive Review Committee. The report of that committee was approved, as the noble Lord said, by the Assembly on a cross-community basis on 20 January. The Government believe that it is right and proper that they should take their lead from this agreement.

Amendments 1A, 1B and 1C would remove the possibility of a nomination for the justice Minister being made by any Member of the Assembly. Instead, the nomination would have to be made either by the First Minister and the Deputy First Minister acting jointly, by at least eight Members of the Assembly, or by at least one Member of each of the four largest parties in the Assembly. The Assembly and Executive Review Committee did not seek to restrict who could nominate the justice Minister, and for that reason we have not done so in the Bill.

Another of the models provided for by the 1998 Act in Section 21A(3) already provides for a single elected Minister nominated by the First and Deputy First Ministers, which replicates the effect of Amendment 1A. But, in any case, the key test that needs to be applied is whether the nomination commands cross-community consensus, as expressed through a cross-community vote in the Assembly. That is what the Bill provides; therefore, there is no need to impose the additional hurdles within the nomination process which would be created by Amendments 1B and 1C.

The noble Lord also asserted that having a single Member of the Assembly nominate the justice Minister saves the DUP or Sinn Fein from having to lose face by doing so. I do not accept that these provisions let anyone off the hook. It is simply a way to ensure that any Member of the Assembly can nominate a justice Minister and that there should be no restriction on that right. The nomination still requires cross-community support to be carried.

Amendment 2A, in the name of the noble Lord, Lord Maginnis of Drumglass, would prevent the First Minister and the Deputy First Minister from being nominated to hold the office of justice Minister. It is a feature of all existing ministerial models for the department of justice and the other executive ministerial offices that neither the First Minister nor the Deputy First Minister is precluded from holding these offices. Members of the Committee may recall that the honourable Member for Foyle simultaneously held the office of Deputy First Minister and that of finance Minister under a previous Assembly mandate. I am grateful to the noble Baroness, Lady Harris, for giving the example of her noble friend Lord Wallace of Tankerness, in Scotland.

To amend the Bill in the way proposed by the noble Lord, Lord Maginnis, would create an inconsistency between the model set out here and the arrangements that Parliament has already put in place for existing models. I would draw the noble Lord’s attention to Section 18(7) of the Northern Ireland Act 1998 and to paragraphs 3(7), 7(7), 11(7) and 11F(1) of Schedule 4A to that Act. It is important that the Assembly should have no less flexibility to appoint a justice Minister under this model than under any of the others. In response to the noble Lord’s suggestion that, if the First Minister and Deputy First Minister were to be nominated as justice Minister they would have a veto over their own removal, that is not necessarily the case. On current Assembly arithmetic, the DUP or Sinn Fein would be required to carry a cross-community vote. However, that arithmetic would not always be the same. Given that the DUP and Sinn Fein have committed to not nominating the justice Minister until after 2012, the Government believe that the noble Lord’s concerns are misplaced. I therefore ask him not to press his amendment.

Amendment 4A would make it possible for the Assembly to remove the justice Minister on a straight majority vote, dispensing with the need for cross-community support. The requirement of cross-community support for the removal of the justice Minister was recommendation 11 of the AERC report, approved by the Assembly on 20 January. Not only would I advise caution to the Committee before unpicking arrangements which already have support across the Assembly and will fall to them to implement, but this amendment goes beyond the spirit of the Belfast agreement. The agreement sets out the principle of taking key decisions within the Assembly on a cross-community basis which it defined as either parallel consent, as is provided by the Bill, or a weighted majority; namely, 60 per cent of members present and voting, including at least 40 per cent of the nationalist and unionist designations present and voting. It would be hard to argue that the removal of a justice Minister could not be construed as a key decision of the Assembly. For those reasons, the Government do not agree with this amendment.

Amendment 5A would remove the roles of the First and Deputy First Ministers in removing the justice Minister. This would mean that removal could be brought about only by a Motion supported by a minimum of 30 MLAs, which would then need to be passed by the Assembly on a cross-community basis. The provisions included in the Bill for the removal of the justice Minister replicate the arrangements put in place and approved by Parliament in the Northern Ireland Act 1998 for the exclusion of a Minister under Section 35. Given that the arrangements are suitable in that scenario, the Government consider that they should also be suitable here. Again, I hope that the noble Lord will withdraw his amendment.

Would the Minister confirm, first, that when the proposal of the First and Deputy First Ministers was brought to the Executive and they were asked to officially note it, there was not unanimity; secondly, that when the review committee of the Assembly and the Executive brought forth its report, it was not unanimous; and, thirdly, that the Ulster Unionist Party and the SDLP voted against the report in the Assembly?

Could I also ask the noble Baroness to clarify another point? It appears that no provision is made in the legislation for a situation where more than one nomination is made in the Assembly. A single member can nominate the Minister, but what if a party decides, because it disapproves of the process, that each of its members will nominate someone to be Minister? I do not believe that there is any provision within the Bill for simultaneous nominations.

The discussions in the Executive are private, and I do not know what the voting was. The vote in the Assembly was not unanimous. I believe that the SDLP did not vote against the proposal in the Assembly, but, as I understand it, the Ulster Unionists did. That is democracy is action.

In response to the noble Lord’s question, I refer him to new Section 3D(6), which states:

“Once one member has been nominated, no further nominations may be made unless and until sub-paragraph (7) applies”.

Sub-paragraph (7) states:


(a) the nomination does not take effect within a period specified in standing orders, or

(b) the nominated person does not take up the office for which the person has been nominated within that period,

a further nomination of a member of the Assembly may be made under sub-paragraph (4)”.

I hope that that clarifies the position.

I am grateful to the Lord President of the Council. Obviously it has been important that I have been able to air and forewarn noble Lords about the implications of this Bill as it will affect what happens on the ground in Northern Ireland, as it will affect the functioning of the Assembly and as it will affect justice and policing. Having done that, I feel that I have done my duty. I am neither competent to nor do I desire to cross swords with noble and learned Lords who are much more aware of the implications than I am. I beg leave to withdraw the amendment.

Amendment 1A withdrawn.

Amendments 1B and 1C not moved.

Amendment 2

Moved by

2: Schedule 1, page 6, line 21, at end insert “, and

(d) where the member nominated was a member of a party at the time he took his seat in the Assembly, a majority of the members of that party voting.”

I will also speak to Amendments 4 and 5. The amendments are partially inspired by the arguments made by the honourable Member for Foyle in Committee in the other place. As Mr Durkan accepted, there is nothing in the Bill to protect a Minister of justice from being ousted from office on a somewhat capricious basis. In the Commons, the SDLP proposed that the nominating officer of a political party should be involved in the appointment and removal of the Minister. We saw a lot of merit in that proposal but we were worried about what would happen if the nominating officer was in fact the Minister himself. There may be circumstances where he might not agree to remove himself from office even if that was the will of his own party. Therefore, we have tabled amendments to provide for an extra component in the cross-community vote.

Amendments 2 and 5 provide that a Minister of justice has to be appointed and removed by 50 per cent of the unionists voting, 50 per cent of the nationalists voting, 50 per cent of the Assembly voting, and the majority of the members of the Minister’s party voting. We believe that these amendments provide the Minister of justice with a degree of security while maintaining the right of the Assembly to remove him from his post. It also provides the synchronisation between the appointment and removal which the Government are keen to maintain. This is a fairly modest amendment and we urge the Government to accept it. As I said at Second Reading, we believe that the Minister of justice is a special Minister in circumstances which are particularly fraught at the present time.

I will now address Amendment 4. The Liberal Democrats tabled this amendment in the other place and we made representation to the Minister, Mr Paul Goggins, at our meetings last week. The amendment takes inspiration from the Police (Northern Ireland) Act 2000 which allows the Secretary of State to remove a political or independent member from the Policing Board if he has been convicted of a criminal offence since his appointment, if he has become bankrupt, if he is not committed to non-violent and exclusively peaceful and democratic means, or if he is unable or unfit to discharge his functions. We believe that putting such a qualification into the Bill would prevent vexatious attempts by Members of the Assembly to remove a Minister of justice from office. The Assembly would need to resolve that a Minister filled one of the four criteria listed in the amendment before they could remove him. This gives a Minister of justice more protection than is afforded in the Bill as it stands. As we know from our daily experience in this place, justice Ministers and Home Secretaries are often called on to make difficult decisions that, in an ideal world, they would choose not to make. They make these decisions because they are in a secure position and because they have to. If a justice Minister is vulnerable to a populist movement within the Assembly, he might not be able to make the difficult decisions required of a justice Minister. The amendment would ensure that the Assembly still has the right to remove the Minister of justice from office, but it would give him protection in that he could not be removed for frivolous or populist reasons but only for serious reasons of grave misdoings. I beg to move.

I will speak to Amendments 6 and 10 in this group. Amendment 6 is another modest amendment. It was moved in the other place and it is an attempt to limit the possibility of vexatious Motions being tabled by Members of the Assembly. It gives the Assembly the ability to set out in Standing Orders a limit on the number of times a Motion to remove a Minister can be made during a specific period of time, again to be specified in Standing Orders. Westminster is simply giving the Assembly the ability to address this problem in its own Standing Orders. The amendment does not specify a limit or a time frame; it respects the remit of the Assembly to determine its own business. We are not prescribing how the Assembly should operate; we are merely giving it an option which it may wish to use.

I declare an interest: I am, as the Government know, doing work in Northern Ireland on their behalf in seeking to reach an accommodation between the various sections of the Northern Ireland community on the issue of parades in the long term.

I listened to the Minister’s response in the debate earlier this week on the issue raised by my noble friend Lord Smith of Clifton in Amendments 2 and 5. I was disappointed and concerned to hear the Minister’s defence as to why he did not wish to respond to the substance of the two amendments. As I recall it, the Minister said that this safeguard was built into the Good Friday agreement so that there would be a counter-balance of veto between the nationalist and the unionist sides. But surely we have moved beyond the conditions of the Good Friday agreement—we would not have this legislation before us if we had not—into a rather more mature situation in Northern Ireland, where those who determine what goes on are not only those representing the nationalist and unionist sides but also others who declare themselves on neither side. Surely that is what we wish to see grow.

Future Ministers of justice very likely may come from the Alliance Party of Northern Ireland, which does not declare itself as part of the nationalist or unionist side but sees itself as representing all of Northern Ireland and what you might call the broader civil society of Northern Ireland which we would wish to see established. It is curious, therefore, that the Government are proposing that we should allow such Ministers of justice to be dismissed by what would basically be a vote of the two sectarian parties of Northern Ireland. That would be folly. It also does not respond to the conditions we see developing in Northern Ireland, thanks in large measure to this Government’s courageous moves, and that is not wise. It does not respond to the present circumstances.

It was right in the context of the Good Friday agreement that we should ignore this third quotient of Northern Ireland; that in order to prevent and stop the Troubles we should place this counterbalancing power in the hands of those who see themselves as representing either the nationalists or the loyalists. That was right for that moment, but surely it is not right for this moment. It was right for that moment that those who regarded themselves as being out of the nationalist/loyalist division should be essentially weightless, but surely they should not be weightless now. To allow a justice Minister, who for very good reasons will probably come from a party that is neither nationalist nor loyalist, to be dismissed by a conspiracy between the nationalists and loyalists who dominate is folly of the highest order.

Imagine a situation where you have a justice Minister from the Alliance Party presiding over a corruption investigation into the Executive, made up necessarily of both nationalists and loyalists. Under these provisions, it would be open to both of those parties to dismiss the justice Minister without it having anything to do with the preservation of the ethnic balance of Northern Ireland but simply because it was politically convenient to do so. Is that the kind of circumstance the Government wish to promote? This provision is like asking a domestic cat to preside over the administration of justice between two tigers on the basis that the tigers have an absolute right to eat it whenever they conclude it is convenient to do so. Who would take such a job under such provisions? More importantly, who could do a good job, in those circumstances, under such provisions? This is not to respond to the movement made by Northern Ireland, to the present climate or to the requirement to bring in others into the Government of Ireland—not just nationalists and loyalists. It is absolutely not to respond to creating appropriate conditions in which a Minister of justice could do his job effectively.

I apologise for having to take the noble Lord to task, but with his experience in Northern Ireland, I would have thought that he would have got the nomenclature correct. He has referred again and again to nationalists and loyalists. I am offended by being called a loyalist. I have never been a loyalist, nor have members of my party been loyalists. We are unionists and have a right to be referred to as unionists. I am disappointed. I thought the noble Lord would have known better.

I accept the noble Lord’s admonition. He is entirely correct and I apologise to him, his party and any others I may have inadvertently offended. However, while my expression may have been inelegant—and again I apologise to the House and to noble Lords for it—that does not subtract in any way from the substance of what I have been saying.

I ask the Government to think again. It seems unwise to put a Minister of justice, who comes from outside that division, into a position where he could be dismissed, for reasons that are nothing to do with the preservation of the balances in Northern Ireland and nothing to do with putting him in that position. This seems unwise and inappropriate and I hope the Government will think again.

The noble Lord made a convincing argument, but there is an exception and it was enshrined in the way that he presented his case. There is a party called the SDLP. There is a party called the Ulster Unionist Party. Neither is sectarian. Neither wants to be associated, by the noble Lord or by anyone else, in sectarian terms. If he decides that he can pick out the Alliance Party of Northern Ireland as the one non-sectarian party, he errs.

I cannot sit in your Lordships’ House and allow that misunderstanding to be stated again and again—to be underlined—because it is not true. Many in Northern Ireland have a huge desire—not least those of us who negotiated at the coalface of the Belfast agreement—for a non-sectarian, pluralist society within Northern Ireland. Hence to suggest that provision is made within this Bill to facilitate one small party that will simply be the buffer between Sinn Fein and the DUP, appears to be an act of folly.

The noble Lord, Lord Ashdown, will see that on page 6, subsection (11) states:

“The relevant Minister shall cease to hold office if—

the Minister resigns by notice in writing to the First Minister and the deputy First Minister,

(b) the Minister ceases to be a member of the Assembly otherwise than by virtue of a dissolution, or

(c) the Assembly resolves that the Minister is to cease to hold office”.

There is nothing about the First Minister or the Deputy First Minister doing a deal to get rid of the Minister; it is the Assembly which decides.

The removal of the Justice Minister was discussed before legislation was published. It is important that arrangements are in place to enable the justice Minister to be removed, although they are unlikely to be triggered during the interim period. Even with the existing provision, the justice Minister could still be removed through the normal exclusion procedure or through a Section 17(1) resolution rearranging departments. It is important that some removal power is in place apart from the normal provisions because it is consistent, first, with the letters of the First Minister and the Deputy First Minister. It is also important that there is consistency between appointment and removal. I would point out that permitting a removal of the justice Minister by a cross-community vote is entirely consistent in that it mirrors the manner of the appointment of that justice Minister. This power again is highly unlikely to be used and other departmental models already provide for analogous arrangements for removal by those who appointed.

Perhaps I may respond to the noble Lord, Lord Glentoran. He drew our attention to subparagraph (11) on page 6 and accurately described what is there. If he looks a little further, he will see that a,

“resolution for the purposes”,

of the above paragraph,

“must be passed with the support of”,

and then he sees a majority of the Members of the Assembly,

“a majority of the designated Nationalists voting, and … a majority of the designated Unionists voting”.

The purpose of the amendment tabled by my noble friend Lord Smith of Clifton was simply to add to that a majority of the party from which the justice Minister was drawn. To vote otherwise would really leave this entirely in the hands of those who would be able to describe themselves as either nationalists or unionists. That would not include, for instance, in the case that I raised earlier, Members from the Alliance Party and indeed other political parties that did not see themselves as sectarian in nature.

In the previous group of amendments, we looked briefly at the arrangements for the nomination and removal of the justice Minister. The Government wholeheartedly agree that the justice Minister is extremely important and we understand that concerns about the arrangements exist, but we continue to believe that the arrangements provided for in the Bill are appropriate. Therefore, we are not able to support the amendments under deliberation.

Amendments 2 and 5 would require, in addition to cross-community support, the support of the majority of the justice Minister’s party before he or she could be appointed or removed from office. The Assembly and Executive Review Committee dealt explicitly with the question of how the Assembly should approve the appointment and removal of the justice Minister. Recommendations 10 and 11 make it clear that appointment and removal would require a cross-community vote and specify that it should be a parallel consent vote requiring a majority of designated nationalists and a majority of designated unionists as well as an overall majority.

The Government agree that the justice portfolio is special and may require different treatment from the other ministerial portfolios. That is why we have provided for a series of alternative models for the structure of a justice department. However, as I explained at Second Reading, we do not accept that cross-community votes are, to use the noble Lord’s words, simple or routine. The principle of taking key decisions within the Assembly on a cross-community basis was one of the safeguards set out in the Belfast agreement of 1998. We have moved a long way since that agreement. I heard the arguments expressed forcefully by the noble Lord, Lord Ashdown, but I do not believe that today is the time or the place to start a re-examination or unpicking of the Belfast agreement by the addition of further layers of protection to the definition of cross-community support.

The Belfast agreement defined cross-community support as either parallel consent, which we are discussing here, or a weighted majority—that is, 60 per cent of Members present and voting, including at least 40 per cent of the designated nationalists and unionists present and voting. The safeguard was designed to meet the particular circumstances of Northern Ireland, given its difficult history, and it was intended to apply in relation to key decisions, not to all routine matters. The appointment and removal of a justice Minister could certainly be characterised as such a key decision.

While I understand that the noble Lord, Lord Smith, and the noble Baroness, Lady Harris, are keen to ensure the most stable framework possible for an incoming justice Minister, I suggest that the best way of providing for that is to put in place the framework recommended by the people who will be operating within it.

Amendment 4, again tabled by noble Lords from the Liberal Democrat Benches, sets out criteria that would need to be met before a motion could be tabled to call for the removal of the justice Minister. Again, I understand the desire of those who have tabled this amendment to head off any suggestion that the justice Minister could be removed at the whim, as it were, of the two largest parties. However, for the reasons that I have set out, the Government believe that a cross-community vote—in particular, the requirement for parallel consent, or 50:50:50—is sufficient to safeguard the power from being used trivially or malignly. I am grateful to the noble Lord, Lord Glentoran, for drawing our attention to page 6, sub-paragraph (11).

The belief that I mentioned was strengthened by the words of the Northern Ireland First Minister, speaking as the right honourable Member for Belfast East during the debate on this Bill last week in another place. I referred to them at Second Reading, but they are worth repeating because, in the Government’s view, they clearly illustrate the commitment of both the First and Deputy First Ministers to making the framework workable. The right honourable Member said:

“Neither the First nor the Deputy First Minister will wish to do anything other than give … 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”.—[Official Report, Commons, 4/3/09; cols. 940-41.]

The Government believe that those words clearly indicate that there is no intention on the part of the two largest parties in the Assembly to misuse the power to remove a justice Minister from office.

Amendment 6 proposes that Assembly standing orders might limit the number of removal motions that could be brought against the justice Minister in a given period. As I have set out, the Government recognise the concern that the noble Baroness expressed, which is that the power to seek removal of the justice Minister could be used vexatiously. That is why, at line 5 on page 7, we propose to restrict the circumstances in which such a motion can be tabled in new paragraph 3D(13) of Schedule 4A to the 1998 Act. Any motion would require the support of 30 or more Members of the Assembly, or to have been tabled by the First and Deputy First Ministers acting jointly. These filters replicate those used for exclusion motions under Section 30 of the 1998 Act, and the safeguards that the Belfast agreement set out should apply to votes on key issues in the Assembly.

Should the Assembly wish to provide further protection against such vexatious requests via standing orders, it is already permitted to do so. Section 41 of the 1998 Act provides a broad power for the Assembly to regulate its own proceedings by standing orders. Providing an additional explicit power for the Assembly to do so for removal motions is not necessary and could call into question the generality of the power in Section 41. The Government are, therefore, unable to support this amendment.

Amendment 10 would prevent a removal motion against the justice Minister being brought before 1 May 2012, or, if the Assembly resolved before then to continue with the departmental model in the long term, from the date of that resolution. As with my earlier comments on Amendments 2 and 4, the key here is recommendation 11 of the Assembly and Executive Review Committee, which explicitly recommended that the arrangements for removing the justice Minister by cross-community vote should apply until May 2012. Once again, this amendment contradicts the express wishes of the Northern Ireland Assembly and Executive Review Committee and the Government are thus unable to support it.

I thank the Lord President for her explanation. I heard what other noble Lords said. We are not unpicking the Belfast agreement; we are adding a new provision in the light of changed circumstances. My noble friend Lord Ashdown vividly described a situation where a Minister of justice could find himself having to investigate, say, two quite different cases of corruption, which might be enough to unite the two main parties in seeking his removal. The Lord President has not given a satisfactory answer there. As for the assurances given by the First Minister, as I said at Second Reading, we have had categorical assurances from Ministers in Great Britain that were not, as it turned out, worth the breath that was expended on them. For these reasons, I wish to test the opinion of the Committee.

Amendment 2A not moved.

Amendment 3

Moved by

3: Schedule 1, 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”

The amendment would require Ministers to make a solemn declaration and oath. This is vital. I have spoken again with the chief constable and, given the way in which things happen when terrorist activity and serious criminal activity gear up in Northern Ireland, he must have a guarantee of those freedoms. At Second Reading, I asked whether, had these recent murders taken place post-devolution, the chief constable would have the powers—the freedom—to call in resources independently, and I think, unless I am wrong, that the noble Baroness’s answer was in the affirmative. We believe that the amendment would clearly strengthen the Bill and give a lot of comfort to everybody involved in the process. I beg to move.

We are happy to support the principles behind this amendment, which we think will allow the Committee to feel reassured on this point.

I support the amendment in the name of the noble Lords, Lord Glentoran and Lord Kingsland. We have made great progress with the Bill since the first elusive reference to it in the Queen’s Speech, but this is a most essential matter. In our debates this afternoon, noble Lords have disagreed on the possible pressures that a Minister of justice, an Attorney-General or the DPP might come under with the new arrangements. There is genuine room for disagreement and uncertainty about the political context in which those officers might operate. However, there can be no doubt at all, in the light of the past few days, that the operational integrity of the chief constable could come under challenge. We saw a bitter debate, before the tragic murders of the past few days in Northern Ireland, when the chief constable made his decision to call in Special Forces, and it is to be remembered that the anger expressed over that came from one of the key parties to the agreement we are moving to implement today. It is therefore vital that we do what we can to underline the operational integrity of the chief constable. In this case, it is not a matter of speculation or debate. This is a fraught political position and everything we can do or say, every signal that the Government can send—I am sure the Government fully accept the validity of the point that the chief constable should have operational freedom of manoeuvre—is vital.

This is a perfectly reasonable sentiment but I believe that it is unnecessary to include it as part of the legislation, because it is dealt with elsewhere in legislation. These are accepted realities in Northern Ireland and they are implicit in existing arrangements. Section 1 of the Justice (Northern Ireland) Act 2002 already places a duty on those responsible for the administration of justice to uphold the continued independence of the judiciary. In addition, all Ministers must take a pledge of office, which is also in the Ministerial Code. I therefore believe that this amendment is unnecessary.

The amendment seems to me to be downright common sense and I shall support it, unless there is a more adequate reply. The Bill, as the noble Lord, Lord Browne, has said, simply says that there must be an affirmation of,

“the terms of the pledge of office”.

Where in the Bill is that pledge of office defined and what exactly is this pledge of office? The wording seems very vague: we would be agreeing to something which is not explained. The solemn declaration in the amendment to respect the operational independence of the Chief Constable of the Police Service of Northern Ireland and to uphold the independence of the judiciary in Northern Ireland is common sense. Incidentally, when the Lord President says that the appointment has already been made by the First Minister and the Deputy First Minister and been widely welcomed throughout Northern Ireland, can she put on the record the name of that appointee? Obviously, it must be widely known if it has been widely welcomed.

This is, indeed, an extremely important issue. As my right honourable friend the Secretary of State said in another place, the Government understand fully the sentiments behind this amendment and agree completely that all Ministers, whether in the UK Government or the devolved Administration, should be fully committed to these fundamental principles of independence.

I turn first to the issue of resources raised by the noble Lord, Lord Glentoran. On the current atrocities, the Prime Minister has said that we will provide whatever extra resources are necessary. Post devolution, the chief constable, like any other chief constable, will be able to request extra resources. That is the position.

Request extra resources from whom? Not from the Assembly, I take it. The chief constable is apolitical, so from whom can he request resources?

As I understand it, the chief constable, post devolution, would request technical resources from the United Kingdom Government. I will come back to the noble Lord if I am wrong.

Technical and specialist resources—resources relating, for instance, to bomb disposal—would be a matter for the Government of the United Kingdom. The chief constable would request those additional technical resources from the UK Government.

In respect of the judiciary, Section 1 of the Justice (Northern Ireland) Act 2002 already places a clear duty on those with responsibility for the administration of justice to uphold the continued independence of the judiciary. The duty applies today to my right honourable friends the Prime Minister, the Lord Chancellor and the Secretary of State. Post devolution, it will also apply to Ministers in the Northern Ireland Executive. The duty will be underpinned by a concordat between the UK Government and the devolved Executive that underscores the core principles of the independence and impartiality of the judiciary in Northern Ireland.

In respect of the police, the Independent Commission on Policing in Northern Ireland, known as the Patten commission, was clear that the chief constable must have sole operational responsibility, and that neither the policing board nor the Government of the day, be it a devolved or direct-rule Administration, should have the power to direct him or her on how to conduct an operation. Section 33 of the Police (Northern Ireland) Act 2000 makes clear that the police come under the sole direction and control of the chief constable. Sections 3(4)(a) and 69 of the Act require that the duties of the policing board and the Minister respectively must be carried out with regard to the principle that the policing of Northern Ireland is to be conducted in an impartial manner.

Noble Lords will recall that the policing board itself was a central element of the Patten reforms. It is made up of 19 members: 10 political members drawn from the parties in the Assembly, selected using the d’Hondt formula; and nine independent members currently appointed by the Secretary of State but, post devolution, to be appointed by the Minister of Justice. It holds the chief constable to account on ordinary policing matters, and also supports the network of district policing partnerships that link the police and the community at local level.

As the noble Lord, Lord Browne, informed us, in addition to these provisions, the pledge that must be sworn by all Northern Ireland Ministers when they take office contains a commitment to,

“uphold the rule of law based as it is on the fundamental principles of fairness, impartiality and democratic accountability”.

These existing guarantees enable me to be very clear: statute already safeguards the chief constable’s operational independence and the principle of impartial policing after the devolution of policing and justice. The Government therefore do not believe that it is necessary or appropriate to replicate the guarantees in the Bill. Additionally, we believe that it is important that the Justice Minister should be subject to the same pledge of office as other Executive Ministers. Therefore, while we support the principles on which the amendment is based, we do not consider that the amendment itself is necessary.

I apologise if I unwittingly misled noble Lords on the earlier question of technical resources. The chief constable will request additional financial resources from the policing board, but requests for technical support will be made to the military and to the British Government.

I thank the Lord President for her fulsome response. For simplicity and clarity, my amendment would be quite neat and tidy in the Bill. People would not have to refer to other Bills and statutes if they were arguing about this provision. However, knowing that it is there, if it can be found—I am sure that people will find it whenever it is needed—I feel able to withdraw the amendment. Of course, I would be delighted if, between now and Report, the noble Baroness would agree that it went in. That would be very helpful. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendments 4 and 4A not moved.

Schedule 1: Northern Ireland department with policing and justice functions

Amendments 5 to 6 not moved.

Amendment 7

Moved by

7: Schedule 1, page 8, line 10, at end insert—

“Immediate filling of Ministerial office6A 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.”

This is also a detailed amendment. The base of it is that I have been concerned ever since I started working on the Bill with the possibility of there being quite long periods after devolution without the appointment of a Minister. In other words, we could have criminal justice and policing devolved and even have a Ministry put together but if we do not have a Minister appointed, the department will be rudderless. It is a very serious department to have rudderless. My amendments attempt to cover that by setting time limits on how long the Assembly has to get its act together and agree to the Minister, the leader, on all occasions that the post becomes vacant. I am concerned that in the Bill there are at least two opportunities for sluggishness in making the appointment and for hanging around. Then we will not have direction in what is probably the most important department in that Executive. I beg to move.

The noble Lord has spoken eloquently about the undesirability of providing for a vacuum, particularly in a portfolio as sensitive as that of justice. The Government recognise that there are concerns that, both after the transfer of powers and after the 2011 election, the Assembly will be unable to agree on whom to appoint as the Justice Minister. I hope that what I said at Second Reading, and what I am about to say, will reassure the noble Lord.

Amendments 7, 8, 9 and 11 provide that if a Justice Minister has not been appointed within six months of responsibility for policing and justice being devolved, or within six months of the Assembly election in 2011, or if the department is dissolved in 2012, the Secretary of State should assume the direction of the department or of the functions that it previously exercised.

The amendments are addressed at the absence of a deadline for appointing a Justice Minister during the transitional period up to 1 May 2012. The Government agree that having no Justice Minister in place is unsustainable in the long term. However, we have taken the view that it is not appropriate during that initial period to be prescriptive about deadlines. We disapplied the normal seven-day deadline for appointing the Justice Minister following an Assembly election to avoid a situation where a slight delay in reaching cross-community agreement on the prospective Justice Minister triggered a further Assembly election, disrupting the newly formed Executive just as they were bedding in.

We deliberately did not put in its place an alternative deadline. The reason for that is two-fold. First, we have confidence that the parties in the Assembly will be able to reach agreement on a Justice Minister in a timely fashion and there is no need, during that transitional period, for us to impose specific deadlines: they will just get on with it without the need for us to set limits.

The second reason is that the Government believe that, in the event that the Assembly was unable to appoint a Justice Minister, it is right that the Government and Parliament should have the maximum flexibility to decide both when and how to intervene. It is unhelpful to speculate at this point as to exactly what the nature of that intervention might be and when it might prove necessary. Such prescriptive amendments would prevent the necessary flexibility in deciding how to deal with the situation. For that reason, the Government do not feel able to support the amendments.

However, I am happy to assure the Committee that, in not supporting the amendments, the Government are not taking the position that it would be acceptable to have a situation where, in the long term, there was no Justice Minister. Rather, we are saying that we have confidence that the parties in the Assembly will reach agreement on this.

Obviously this amendment is looking to the longer term in Northern Ireland, but with the appointment of the first justice Minister there seems to be no problem, because, as the Lord President has said, a person has now been selected for this position. That name has been widely welcomed—

The other day when I was referring to somebody who would be appointed, I was referring to the post of Attorney-General, not to this specific post.

This is a strange and unnecessary amendment. I would expect that, if devolution of policing and justice takes place, this will only happen where there is agreement on who the Minister will be. The operation of the triple lock is such that we would not devolve without the matter being agreed. Indeed, it may even be possible to elect the justice Minister in advance of devolution, to be in post upon devolution. In the event, six months would be a very long time for such an important position to remain vacant. It would be constitutionally odd to have the Secretary of State for Northern Ireland in charge of a Northern Ireland department. Although the Secretary of State is given certain powers under the Northern Ireland Act, I believe that this would not be a very good precedent. In such circumstances, it would be preferable for Westminster to resume control.

I admire the optimism of the noble Lord, Lord Browne; I like to share it. He also takes the point that six months would be a very long time. I am delighted as well to hear from the Lord President that the Government think likewise and will have their eye on the potential problem. I was not sure at first, but I also like the idea of the flexibility, which the noble Baroness talked about, on when the Government should react to the vacancy in the Assembly. In those circumstances, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Amendments 8 to 11A not moved.

Schedule 1 agreed.

Schedule 2 agreed.

Schedule 3: Amendments to the Justice (Northern Ireland) Act 2002

Amendments 11B and 12 not moved.

Schedule 3 agreed.

Schedules 4 to 6 agreed.

House resumed.

Bill reported without amendment.