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Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012

Volume 739: debated on Wednesday 18 July 2012

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2012.

Relevant document: 3rd Report from the Joint Committee on Statutory Instruments

My Lords, the devolution of policing and justice in 2010 was a major step forward on the path towards the political stability that Northern Ireland now enjoys. Noble Lords will be aware that the prospect of devolving policing and justice was raised in the Belfast agreement of 1998, the joint declaration of 2003 and the St Andrews agreement of 2006. However, it was only in 2010, through agreement reached at Hillsborough Castle, that a clear timetable was established for the devolution of policing and justice functions to the Northern Ireland Assembly, which then formally took place on 12 April 2010.

It was necessary as part of the devolution process to make a number of consequential changes to the statute book in order to transfer a wide range of statutory functions conferred on government Ministers to the appropriate authorities in the devolved Administration. The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010 made the vast majority of these transfers of functions. However, due to the timing of the 2010 order, there were provisions of the same parliamentary Session that did not take into account the transfer of policing and justice functions and these now require amendment. In addition, a small number of provisions were also either missed or now require technical correction.

The main purpose of the draft order before us today is therefore to make the necessary amendments to the statute book to complete the transfer of policing and justice functions to the devolved Administration. Most amendments are achieved through straightforward substitutions of references such as “the Department of Justice” for “the Secretary of State”. Where the function being transferred involves both policing and justice matters and excepted matters, such as national security or immigration, provision has been made to divide these functions between the Secretary of State and the Northern Ireland Department of Justice to make clear their respective roles and responsibilities. This follows the approach taken to similar provisions in the 2010 order.

I can confirm that the Department of Justice in Northern Ireland has been fully consulted during the preparation of this draft order and fully supports it. The same is true of Whitehall departments that may be affected. I hope that noble Lords will also support the making of this draft order. It may, in effect, make relatively minor, common-sense amendments to the statute book but this is in pursuit of the much more significant aim of completing the devolution of policing and justice to the Northern Ireland Executive, which itself has led to a level of political stability in Northern Ireland not seen in a generation. I therefore commend the order to the Committee.

My Lords, I immediately declare that the Official Opposition are in support of this move. It is worth spending a minute or so on how we got here. As the Minister rightly said, the devolution of policing and justice was a huge achievement after long and painstaking negotiations. I was long enough in the other place to remember the commendable efforts of the Government led by Sir John Major in initiating this process. When Labour came to power, we knew how sensitive and complicated all these issues were. We worked with all parties and the Irish Government to ensure that the transfer of power and the creation of a new Department of Justice in Northern Ireland were stable and sustainable.

David Ford is doing a very good job in difficult circumstances. He has the full support of Vernon Coaker, shadow Secretary of State for Northern Ireland, in carrying out his challenging and important job. He and the Northern Ireland Executive have done good work in continuing progress in building peace. However, the violence of last week, most notably in Belfast, where 20 police officers were injured, shows that there is much to be done. Parading and areas of dispute around parades have a knock-on effect on community relations and the terrorist threat. Heightened tensions mean heightened security and we should all be aware of the desire of dissident republicans to wreck the peace process. I pay tribute to the Police Service of Northern Ireland for the courage and determination they show every day to protect and serve everyone in Northern Ireland.

Significant responsibilities on national security still lie with the Northern Ireland Office. The boundaries are sometimes blurred between what is national security and what is the responsibility of the devolved Administration and the PSNI. That is inevitable and part of the process. We all know that there are no cut-and-dried, easy solutions in Northern Ireland. In the attempt to take everyone with us, there will be blurred edges.

This order is an attempt to do something about that, and my contribution today will be mainly to ask some questions. I am not quite sure of one or two things. I apologise for that. I am new to this job and to studying the legislation affecting Northern Ireland. I hope to learn quickly enough. Article 7 says:

“(2) In paragraph (1) for ‘Secretary of State’ substitute ‘Department of Justice’.

(3) In paragraph (2) for ‘Secretary of State’ substitute ‘appropriate authority’”.

Is there a reason why these cannot both be allocated to the Department of Justice? In paragraph (4), can the areas of authority be defined a bit better between the Department of Justice and the Secretary of State? Can this section be explained a bit better? I do not quite grasp why the responsibility lies where it does.

In Article 14, there seems to be some dubiety about the status of the National Policing Improvement Agency. I am informed by our Home Office spokesman that the agency is being abolished as part of the Crime and Courts Bill. If it is being abolished, why is it mentioned here?

Apart from these questions, the Official Opposition fully support this move. It makes further progress in devolution in Northern Ireland and we are fully supportive of the Government’s actions.

My Lords, I, too, support this small piece of legislation. I do not think it is particularly contentious, but I would like to use the opportunity to pick up on some matters of devolution.

As the noble Lord, Lord McAvoy, has said, a considerable amount of work has been done in ensuring that these last few pieces of the devolution of policing and justice functions are completely satisfactorily. When my predecessor as leader of the Alliance Party, Sir Oliver Napier, was Minister of Law Reform in the ill fated 1974 power-sharing Executive, one of the key problems was that policing and justice functions had not been devolved. Therefore, when things got out of control it was, partly at least, because the power-sharing Assembly did not have the possibility of enforcing its own rule. When my successor as leader of the Alliance Party, David Ford, became Minister of Justice, it was in the context of agreement on the devolution of policing and justice—something that Seamus Mallon, the deputy leader of the SDLP and later Deputy First Minister, pointed out was the absolutely critical thing in ensuring that there was a serious and stable devolution settlement. He was right about that, although for a long period it was believed that it was so contentious that it was quite impossible. There was an element of truth in that. Without other political agreements, perhaps it was impossible.

However, there is one aspect of policing that remains contentious and difficult, when many others are now able to be discussed—a policing board, district policing partnerships and so on. It was the aspect referred to by the noble Lord, Lord McAvoy, in which I have been slightly involved lately—the question of contentious parades. These are not easy matters, as all noble Lords around the Room know very well. One of the things that struck me is that some of those who have been saying in strident terms that the problem is mistaken judgments by the Parades Commission have had least to say in terms of proposals for better decisions by a Parades Commission or another body. I am not sure that I see another way of addressing this problem until we find ourselves considering another instrument that is devolving responsibility to the First Minister and the Deputy First Minister or to the Executive itself.

For as long as there is a Parades Commission that is acting independently and where elected representatives at the most senior level do not have responsibility for decisions being taken about these issues, but policing itself has to gather up the problems, we will continue to have this kind of contention. I should like to ask the Minister whether, if this order goes through—as I have no doubt it will—he will take back to his right honourable friend the Secretary of State for Northern Ireland and other colleagues a proposal that they look seriously at the devolution of responsibility to the Office of the First Minister and Deputy First Minister whereby they would have to resolve the problem of parades. Some might say, “That is impossible”, but some would have said that about policing in general. It is not a sustainable position, when people are appointed to make difficult decisions and are backed up by the Government here in London, that those decisions are always second-guessed by way of criticism without there being any specific proposal for a realistic alternative decision.

I hear each side saying that the answer is for the fellows on the other side to back down. We were very used to that in the past, but there must come a time when we will have another devolution order in this place that will put the responsibility back to where it actually belongs, the elected representatives of the people of Northern Ireland to make decisions about these matters and then to live with them.

However, I want to say how much I back this order and how striking it is that an issue involving devolution of policing and justice, modest as it is, is no longer a matter of contention.

Has the noble Lord had any thoughts about the process that could be used by the First Minister and Deputy First Minister to arrive at conclusions?

I am hesitant because, of course, as soon as one makes a proposal, the likely response is to knock it down. However, I make the following observations. First, it is clear that the elected representatives did have a set of proposals that they were prepared to bring to the Assembly but which the Orange Order at that stage was not prepared to accept. I believe that the Orange Order has come some distance since that time and, in my discussions, properly mandated representatives of the Orange Order engaged with local nationalist constituents. That would not have happened some years ago. It was a promising thing, even if agreement was not able to be reached. I encourage the First and Deputy First Ministers and the parties in the Assembly to pick their proposals up and to try to push them through.

Secondly, my noble friend may be able to correct me if I am wrong, but I think that I am right in saying that, in extremis, where it is impossible for the police to police a decision of the Parades Commission, the Secretary of State retains some kind of residual function and responsibility. I wonder whether, through that residual responsibility, it might be possible for him to indicate to the First and Deputy First Ministers that he would welcome their coming forward with proposals, whether based on some of their previous proposals or something that they bring forward de novo.

My Lords, the bulk of these proposals are, I understand, tidying up and technical in their nature. Therefore, some pieces of legislation were in process through this place at the time that devolution was implemented, and consequently missed the deadline for inclusion in the legislation at that stage. However, I want to ask the Minister about one area: Clause 9 of the Immigration and Asylum Act 1999.

Before the Minister answers, I make the general point that people have short memories. It is not that long ago that we would have been talking about significant numbers of disturbances in July. This year, most of the cameras were fixed on an area that hardly stretches the distance from where the Deputy Chairman of Committees is sitting to the end of this Room. Consequently, we have to take into account the fact that there has been dramatic change and progress, something which is frequently forgotten.

Parading has been an issue for centuries. This is not new. I think that it has moved on significantly, because there is a greater acceptance of people’s different cultures and the way in which they celebrate their cultures. Of course, the country as a whole is having to come to terms with that. There has been progress.

The issue of the Parades Commission is particular and has come in for a lot of criticism over the past few weeks. This, again, is not a new phenomenon, but if people want to find a solution to these issues, the only way that it will be found is through engagement with all political parties in a meaningful way and wider sections of the community at local level. An attempt was made two years ago to bring forward proposals but, sadly, not all parties were fully involved in that. That can easily be corrected. The particular proposals I would have had great difficulty with. Some of them were not thought through properly. Neither do I believe that it is beyond our collective ability to find a solution. Over time, we found solutions to things that people thought were absolutely impossible.

Yes, it can be resolved but it will require everybody to be engaged at a political level. That is the only way we were ever able to get agreement on the Northern Ireland Act 1998: because everybody was engaged. That could be repeated on the parades issue, and of course other contentious issues like how we treat the past. The whole issue of inquiries is very contentious. There is clearly a hierarchy of victims. We are coming up to the 40th anniversary of Bloody Friday in Belfast, which was a terrible event. There has been no inquiry into that. There are no prosecutions pending or investigations going on into that event. Nine people were killed that day; I remember it very well.

There is still work to be done. This is going to take a generation. People need to stand back, look at where we were and look at where we are. No matter how you measure it, it is a good story to tell. We should take comfort from that. The story coming out of Northern Ireland is predominantly a good news story, and I hope that other parts of the world that are still struggling can perhaps learn a little, and that perhaps we can help a little. I recently met some people from the Middle East and I am sure other noble Lords have done the same.

I specifically want to ask the Minister about Section 9 of the Immigration and Asylum Act as I am a little confused. I am not fully conversant with all sections of the Act but can the Minister explain it a bit more? Will he also tell us whether this legislation is applicable to Scotland? Policing and other functions are devolved to the Scottish Parliament, so is there consistency throughout the United Kingdom in the treatment and implementation of the Immigration and Asylum Act? There is an issue because, unfortunately, Northern Ireland is being used by some people as a back door into the United Kingdom. They are coming into the Irish Republic and are getting into the United Kingdom via Northern Ireland. There have been some cases recently of arrests being made, and I believe some people either have been, or are about to be, before the courts for immigration offences. Can the Minister expand a bit in his final answers on that question?

My Lords, I apologise as I have to be brief due to other commitments this afternoon. I want to refer to some of the comments made by the noble Lords, Lord McAvoy, Lord Alderdice and Lord Empey. This order of course has my personal support and, as a former Minister of Home Affairs dealing with the police in the middle of the last century, it is clearly of great interest to me. However, I am not going to talk about the past, I am going to talk about one or two present-day problems in Northern Ireland.

First, I note my entry in the register of interests, as I am going to talk about the media. The noble Lord, Lord McAvoy, mentioned contentious parades, and the noble Lords, Lord Alderdice and Lord Empey, emphasised what a great improvement there has been in Northern Ireland in that context. Incidentally, is it not a sign of the improvement in circumstances in Northern Ireland that 100 members of the Police Service of Northern Ireland incorporating the former Royal Ulster Constabulary, are coming to rescue London from its problems next week? That represents a change in what is happening within the United Kingdom.

One of the things that worried me during the past week, watching the media here in Great Britain, especially Sky and the BBC, was that they concentrated on one parade only, near the Ardoyne. There were hundreds of parades last week in Northern Ireland, all of which were peaceful and orderly—but not one reference was made to that by the media here in Great Britain. Worse still, they misrepresented what did happen. They reported—not simply alleged—that an Orange parade went through the Ardoyne. It did not go through the Ardoyne, it went down the main road past the Ardoyne. To walk through the Ardoyne would have been absolutely criminal, and madness. They do not get the terminology correct and give the impression of provocation. There was no riot immediately after that Orange walk—it was after a parade by supporters of the Real IRA, who went down that road a few hours later. Once again, the media did not make that clear here in London and there were terribly misleading reports.

The second point—bringing us right up to date as we are talking about the Department of Justice in Northern Ireland and the devolution of powers from here to Stormont—regards a report recently in the Tyrone Constitution. It is a paper with which I am personally connected but I had no involvement in the report. It was a local report of an Omagh District Council meeting. Councillors from all parties, Sinn Fein, Ulster Unionists and the DUP, were reported as complaining about departments of government—I think the Department of Justice was mentioned—discriminating against the people outside greater Belfast. This is something now taking place under the terms of consultation. Who are these government departments, including the Department of Justice, consulting with and who are they offering jobs to? They are restricting the advertising of jobs and consultation documents to press within the greater Belfast area and no longer using the media outside Belfast. The result is that there is now a bias in favour of the people living within the greater Belfast area. As one who lives west of the Bann myself, I am getting complaints now from people—and the report in the Tyrone Constitution is typical of what I am hearing— that people in Londonderry, Tyrone and Fermanagh and Counties Down, Armagh and Antrim are no longer getting the same opportunities as people in the greater Belfast area.

To be personal and specific about one newspaper, the Belfast Telegraph, 55% of its readers now are restricted to the greater Belfast area. There are only about 700 copies of the Belfast Telegraph sold in each of the main towns in Northern Ireland, yet the weekly papers there, many of which are owned by companies with no connection to me, sell 10,000-12,000 copies. However, the Department of Justice advertises in the Belfast Telegraph restricting most of the readers to the greater Belfast area, thereby ignoring the people in the other parts of Northern Ireland. I want to place that on the record today because, as we consider devolving more powers to departments in Belfast, they must treat all sections of the community in Northern Ireland fairly and not continue this discrimination against people living outside greater Belfast.

My Lords, I was a member of the Northern Ireland Assembly in 2010 when policing and justice were successfully devolved. It was a very difficult time but I am pleased to say that since then the Justice Committee has performed its task well. I think it has enabled both sides of the community to take responsibility for policing. I know that we all wish to move forward to a shared future. However, it is not without difficulty. Respect, as we have heard, for different traditions and cultures does not come easily and does not necessarily appear overnight. It will be a long-term learning process. We all face challenges in Northern Ireland but I am confident that issues such as parading, as we have heard, will be resolved and I know that there is a lot of work in the background going on that will help to do that. When these issues are resolved, I am confident that the Northern Ireland Executive can concentrate on the issues that are important to the people such as housing, education and the state of the economy.

Finally, we owe a great deal of gratitude to the Police Service of Northern Ireland which has played a very constructive role in this process, but it still, as we have heard, has a very difficult task in ensuring that the law is enforced fairly and that those who resort to violence are brought to justice.

My Lords, I, too, support the order and I thank the noble Earl, Lord Attlee, for introducing it. I also thank the officials in the Northern Ireland Office for producing helpful explanations of some of the more technical parts of order. That is necessitated not simply by the fact there was legislation going through this place in 2010 but that other prior pieces of legislation such as the Policing and Crime Act 2009 had to be taken into account. So the logic behind the legislation is impeccable and not a problem at all.

I want to make just a brief remark about the general issue of the devolution of policing and justice. The noble Lord, Lord Alderdice, has already alluded to the fact that those of us who tried to make the argument for the Good Friday agreement in 1998 found that at the time that that was one of the most dangerous and weakest parts of the argument. I can remember leaving a television studio, having supported the Good Friday agreement, and receiving a call from the bowels of the Northern Ireland Office from a well-known senior figure therein congratulating me on the fact that I had actually avoided all discussion of the issue and had pushed it to one side. Although allowed for in theory in the 1998 Act, it was considered to be something for the far distant future—and I mean a future beyond the time we are now living in and acting upon. So it is quite remarkable that we have made this progress and that the parties of Northern Ireland have reached so much agreement about it. The logic of that progress has to be, as the noble Lord, Lord Alderdice, said, that we consider the role of the Parades Commission and the devolution of those powers to the First and Deputy First Ministers. I support his request to the Minister that at least some thinking should begin on this matter. The question of timing is inevitably a difficult one for the reasons explained by the noble Lord, Lord Empey.

I want to add one other point. We are extraordinarily lucky in the person of the Minister responsible for justice in Northern Ireland. He was, as the noble Lord, Lord Alderdice, knows, the leader of the Alliance Party, which he led with such distinction for so long. He has his critics, of course, but in Northern Irish terms he is a very consensual figure—as consensual as you are going to get. The political circumstances that led to his appointment will not necessarily subsist for ever, and that is understating the case. In the context of all we have said about the almost magical nature of the improvement in Northern Ireland, we have to be aware that there are still difficulties, one of which is the possible personality of the next Minister for Justice. However, that is a mere caveat, and I agree that in general things have gone remarkably well.

My Lords, I am grateful for the support of the noble Lord, Lord McAvoy, for the order. He said that he is new to the Northern Ireland brief. In 1998 I was the Opposition Spokesman for Northern Ireland, and I have to say that I enjoyed it, particularly when visiting the Province. I am also grateful to all noble Lords who have contributed to the debate.

The noble Lord, Lord McAvoy, asked me about Article 7: why should not all responsibility be transferred to the Department of Justice and why is there a split of responsibility for the policing of the airport? The policing of an airport involves both excepted functions such as national security and immigration, and devolved functions such as policing. This arrangement ensures that responsibility for key exempted considerations such as national security arrangements remain the responsibility of the Secretary of State while allowing the Northern Ireland Department of Justice to take full responsibility for those aspects that relate to the devolved functions. He also asked me about the interaction of the Crime and Courts Bill: whether it seeks to replace the National Policing Improvement Agency, why is that not referred to in the order. The Crime and Courts Bill is still passing through this House. We will ensure that it makes the necessary consequential amendments, but to legislate now would be the wrong thing to do.

The noble Lord, Lord Alderdice, talked about parades. I agree entirely with his observations about the difficult issues around the Parades Commission. The Government regret that community tensions spilt over into violence in the evening in the aftermath of the 12 July parade in the Ardoyne. The Government totally condemn all violence and we want to avoid a repeat of the violent scenes of riots in Belfast that have been beamed across the world each summer. We need to ensure that the marching season passes off peacefully. Violence around parades affects those living in the areas and does nothing to promote the good name of Northern Ireland. It is in everyone’s interests to find a locally agreed solution to devolving the regulation of parades. It was disappointing that the Northern Ireland Executive was unable to reach an agreement in 2010. I hope that it is something they can look at again and find a compromise solution to this problem that blights Northern Ireland every year.

It is not for the Government, however, to comment on the independent decisions of the commission. I am sure that the Committee fully accepts that the Parades Commission is an independent body that has to make arduous decisions about contentious parades. It has to take many considerations and all factors into account in an attempt to reach a compromise. These are difficult, demanding and sometimes nearly impossible decisions to make, and we stand by its impartial judgment, particularly given that there is no other mechanism to adjudicate on parades in Northern Ireland.

The noble Lord, Lord Empey, also talked about the Parades Commission. All that I can add is that I sincerely hope that agreement can be reached at some point. I agree with him that good news is coming from Northern Ireland. We have come a long way since I was previously an opposition spokesman in the 1990s. The noble Lord asked whether all of Article 9 had been excepted and what the position was in Scotland. The article partly devolves certain functions, such as bail and regulation of the Immigration Services Commissioner, to the Northern Ireland Department of Justice. This brings the legislation into equivalence with Scotland. He asked: why are we altering an Act that deals with excepted issues? Certain aspects of immigration, such as bail, are fully or partly justice issues, and should therefore be devolved. This arrangement again brings the legislation as it relates to Northern Ireland into equivalence with that obtaining in Scotland.

The noble Lord, Lord Kilclooney, talked about the support of the PSNI to the Olympics. This arrangement was agreed some time ago and is not a response to the failure of security firm G4S to recruit enough staff for the Games. However, I should also like to take this opportunity to pay tribute to the PSNI, and the RUC before it, for their assistance on international policing operations that I have seen and have very much appreciated. I should also like to give thanks to the work of the PSNI.

The noble Lord also got on to somewhat wider issues, which he is entitled to do, about discrimination by the Department of Justice in terms of consultation and advertising. This is a matter for the devolved Administration, which I am sure he will recognise. His comments are on record and can be seen by the relevant Ministers. If I have missed out anything, I will write to noble Lords.

Motion agreed.