The constitutional nonsense reappears..

The Hansard record isn’t yet is now available [permanent link] but, according to the BBC report, the DUP and the SDLP are claiming that the Secretary of State’s attempt to amend the Justice and Security (Northern Ireland) Bill – in order to amend the Miscellaneous Provision Act to include a constitutional nonsense – will, in effect, reserve the two ministerial posts in a devolved department for a designated Unionist and a designated Nationalist. Of more interest to me, given my repeated examination of the situation, is that Peter Hain, or more likely one of his successors, is to may be given the power to impose that devolution of powers, “If it appears to the Secretary of State that there is no reasonable prospect that the Assembly will pass an Act of the kind described..”.. you know, that constitutional nonsense he mentioned previously.. Updated below the fold Adds I may have overstated the clause’s amendment.. DUP MPs have claimed the new clause would only allow a Secretary of State to set in place “a shell of a Department—a model with no devolved powers.” Final update since David Hanson has clarified the clause, and it has been added to the bill – see belowThe key section from the text of Peter Hain’s new clause..

‘(1) In section 17 of the Northern Ireland (Miscellaneous Provisions) Act 2006 (c. 33), the inserted section 21A of the Northern Ireland Act 1998 (c. 47) (Northern Ireland department with policing and justice functions) is amended as follows.

(2) For subsections (1) and (2) substitute—

“(1) An Act of the Assembly that—

(a) establishes a new Northern Ireland department; and

(b) provides that the purpose of the department is to exercise functions consisting wholly or mainly of devolved policing and justice functions,

may (but need not) make provision of the kind mentioned in subsection (3), (4), (5) or (5A).”

(3) After subsection (5) insert—

“(5A) The Act may provide—

(a) for the department to be in the charge of a Northern Ireland Minister elected by the Assembly; and

(b) for that Minister to be supported by a deputy Minister elected by the Assembly.”

(4) In subsection (6)—

(a) for “and (5)” substitute “, (5) and (5A)”;

(b) at the end insert “, or by Order in Council under subsection (7C)”.

(5) After subsection (7) insert—

“(7A) If it appears to the Secretary of State that there is no reasonable prospect that the Assembly will pass an Act of the kind described in subsection (1)(a) and (b), he may lay before Parliament the draft of an Order in Council which— [added emphasis]

(a) establishes a new Northern Ireland department;

(b) provides that the purpose of the department is to exercise functions consisting wholly or mainly of devolved policing and justice functions;

(c) provides for the department to be in the charge of a Northern Ireland Minister elected by the Assembly and for that Minister to be supported by a deputy Minister elected by the Assembly; and

(d) provides for Part 3A of Schedule 4A to apply in relation to the department (with any necessary modifications).

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

(7C) If the draft of an Order laid before Parliament under subsection (7A) is approved by resolution of each House of Parliament, the Secretary of State shall submit it to Her Majesty in Council and Her Majesty in Council may make the Order.

(7D) No more than one department may be established by virtue of an Order under subsection (7C).”

There are a couple of points to note.. firstly the Government’s previously stated view

It has always been the Government’s position that policing and justice can be devolved on a sustainable basis only with broad cross-community support. We have put in place a triple lock, as the Assembly must wish to have devolution, the Secretary of State must wish to agree it on behalf of the Government, and the House of Commons must approve it. Consistent with that position, it is our view that the support of the majority of sections of the community in Northern Ireland is essential if the devolution of policing and justice is to succeed. The amendments give legal effect to that position. New subsection (2A) inserted into section 4 of the Northern Ireland Act 1998 by new clause 3(3) accordingly provides that the Secretary of State shall not introduce an order to devolve policing and justice unless a number of caveats are in place.

First, the Assembly motion asking the Secretary of State to do that must be tabled by the First and Deputy First Ministers acting jointly. Secondly, that motion should receive support in the Assembly from a majority of designated Unionists and a majority of designated nationalists. Having listened to the discussion, it is self-evident that unless the Assembly has that support it is not worth considering forcing devolution on it. The fact that under the amendments the First and Deputy First Ministers would have to introduce a proposal shows that a majority of community support is necessary. We want a majority of nationalists and designated Unionists to support it, too. New clause 5 (5) introduces a drafting change to that effect.[added emphasis]

It’s difficult to see how that position has changed. And, regardless of the apparent trip-wire the new clause seeks to set in place, should the conditions on the ground not be conducive to the Assembly as a whole agreeing to devolve policing and justice by May 2008.. no Secretary of State would be able to impose it without causing another political crisis.

Of course, one other point to note is that by amending the Miscellaneous Provisions Act in this way, as opposed to the more explicit SDLP amendment also at the link, rather than the St Andrews Agreement Act the power to impose that department isn’t tied to any actual deadline target date.. it’s just there in the legislation.. not that that affects the constitutional nonsense..

Adds I’m not sure whether this muddies the water or clears up any confusion.. but NIO Minister David Hanson, who was tasked to introduce the new clause, was put under some pressure in the debate – here’s a relevant extract [added emphasis throughout]

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

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

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

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

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

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

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

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

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

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

Lady Hermon: The new clause states:

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

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

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

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

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

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

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

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

4.15 pm

As to new clause 4—[Interruption.] I am glad to see that I am getting at least some support from certain parts of the House. It is always nice to have the support of one’s fellows.New clause 4 was also tabled by my hon. Friend the Member for Foyle. It is designed to overturn plans announced by the Government on 24 February that responsibility for national security and intelligence work in Northern Ireland will transfer from the police to the Security Service later this year. You will expect me to say this, Mr. Speaker, but I believe that the Government’s plans are sound, sensible and logical.

Under the Northern Ireland Act 1998, national security is an accepted matter for which the Secretary of State is responsible and it cannot be devolved. The Under-Secretary of State for Northern Ireland, my hon. Friend the Member for Wythenshawe and Sale, East (Paul Goggins), dealt extensively with this matter in Committee and elsewhere. The change will take place later this year to align operational arrangements with the political and constitutional responsibilities, which will facilitate the devolution of policing and justice in due course. The change is one of the welcoming, normalising measures that are coming before the House to bring Northern Ireland into line with the rest of the United Kingdom, mirroring the relationship between the Security Service and the police across the UK as a whole.

Operationally, the change will make for a consistent and co-ordinated response across the UK to the threat from terrorism in all its forms. I am sure that hon. Members would welcome that, not just in respect of the historical terrorism that has been inflicted on Northern Ireland, but regarding the wider potential threats that exist against the UK. I know that my hon. Friend the Member for Foyle, who opposes the change, fears that it risks damaging the progress made on policing reform post-Patten, and he would probably also raise the issue of policing accountability. I hope that I can assure him that we are taking a sound, logical step and that those fears are misguided. We believe that the objectives that we seek will bring security for the people of Northern Ireland.

In conclusion, I commend new clause 5. I emphasise that it is designed simply to widen the choice for the Assembly and as a last resort for the Secretary of State. I say again that the triple lock remains in place. I hope that my hon. Friend the Member for Foyle will, after speaking to his new clauses on national security and other matters, withdraw them. The Committee and the House can consider these matters fully.

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

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

which will establish

“a new Northern Ireland department”.

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

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

Adds David Hanson hasn’t yet clarified what the new clause allows for.. but the DUP MPs in the chamber are claiming it only allows for the creation of a Department without any actual powers.. “a shell of a Department—a model with no devolved powers.”

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

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

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

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

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

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

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

That might avoid a constitutional nonsense… but, if invoked, it would still be likely to provoke a political crisis.

Final Update David Hanson has returned to clarify the meaning of the clause

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

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

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

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

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

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

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

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

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