Northern Ireland Assembly, 10 November 2009

500 contributions from 46 members. The official report.

Executive Committee Business

William Hay (Speaker, Foyle)

Members will have a copy of the Marshalled List of amendments detailing the order for consideration. The amendments have been grouped for debate in my provisional grouping of amendments selected list.

There are three groups of amendments and a debate on opposition to clause 50 stand part and schedule 4’s being agreed. I have also received notice from the Minister and some Members that they wish to speak to clause 6.

We will debate the amendments in each group in turn. The first debate will be on amendment Nos 1, 2, 8, 9 and 10 and opposition to schedule 1’s being agreed, which deal with matters relating to the definition of “goods vehicles”. The second debate will be on amendment Nos 3, 4, 5, 6, 7, 12, 13 and 14, which deal with technical matters. The third debate will be on amendment No 11, which deals with a new power for payment of grants.

I remind Members who intend to speak that during the debates they should address all the amendments in each particular group on which they wish to comment. Once the initial debate on each group is completed, any subsequent amendments in the group will be moved formally as we go through the Bill, and the Question on each will be put without further debate.

The Questions on clause stand part and schedule’s being agreed will be taken at the appropriate points in the Bill. If that is clear, we shall proceed.

William Hay (Speaker, Foyle)

We come to the first group of amendments for debate. With amendment No 1, it will be convenient to debate amendment Nos 2, 8, 9 and 10, along with the associated schedule 1, which the Minister has given notice that he wishes to oppose. Those amendments deal with matters relating to the definition of “goods vehicles”. Amendment No 1 is a paving amendment for amendment No 2. I call the Minister of the Environment, Mr Edwin Poots, to move amendment No 1 and address the other amendments in the group.

Edwin Poots (DUP, Lagan Valley)

I beg to move amendment No 1: In page 1, line 10, leave out

“within the meaning given in Schedule 1”.

The following amendments stood on the Marshalled List:

No 2: In page 1, line 16, at end insert

“(2A) For the purposes of subsection (2)(a) a goods vehicle is a small goods vehicle if—

(a) it does not form part of a vehicle combination and—

(i) it has a relevant plated weight not exceeding 3.5 tonnes, or

(ii) in the case of a vehicle which does not have a relevant plated weight, it has an unladen weight not exceeding 1525 kilograms; or

(b) it forms part of a vehicle combination and complies with such conditions as may be prescribed;

and ‘relevant plated weight’ in paragraph (a) means a plated weight of the description specified in relation to that paragraph by regulations.” — [The Minister of the Environment (Mr Poots).]

No 8: In clause 38, page 29, line 11, leave out paragraph (c). — [The Minister of the Environment (Mr Poots).]

No 9: In clause 39, page 30, line 10, leave out

“or paragraph 4(1) of Schedule 4”. — [The Minister of the Environment (Mr Poots).]

No 10: In clause 39, page 30, line 16, leave out

“or paragraph 4(1) of Schedule 4”. — [The Minister of the Environment (Mr Poots).]

The amendments in this group or, indeed, any of the amendments to be debated at this stage do not involve any change of policy. Rather, as I see it and, I believe, as the Committee for the Environment sees it, they are designed to make what is a good Bill a little better.

The first group of amendments relates to the definition of a “small goods vehicle” in clause 1 and schedule 1 and the requirement for large goods vehicles to carry consignment notes in clauses 38, 39, 50 and schedule 4. As drafted, the definition of a small goods vehicle replicates the definition in the Goods Vehicles (Licensing of Operators) Act 1995 in Great Britain. However, the definition is complex and has resulted in confusion as to what vehicles are deemed to fall within the scope of operator licensing. That is particularly the case in relation to vehicle combinations. I want to simplify the definition, and I want people to know whether their vehicle is in scope or out of scope. The proper way to do that is through regulations, rather than in the Bill.

Amendment No 1 will remove a reference to schedule 1, which contains the definition. The impact will be that the requirement to hold an operator’s licence will not apply to the use of small goods vehicles generally. Amendment No 2 will insert a new subsection (2A) into clause 1 to provide the power to make regulations that will describe vehicle combinations in a simple manner. Schedule 1 will not, therefore, be needed, and I intend to oppose the Question that schedule 1 be agreed to. These amendments will allow the definition of small goods vehicles to be clear and unambiguous. Officials will, at an early stage, present for my approval and that of the Environment Committee proposals on exemptions and in- and out-of-scope vehicles.

The remaining amendments in the group will remove the references to schedule 4 to the Bill from clauses 38 and 39. I intend to oppose the Questions that schedule 4 be agreed to and that clause 50, which refers to it, stand part of the Bill. Amendment Nos 8, 9 and 10 are consequential to the proposed removal of schedule 4 and remove references to it.

I understand that all of the group one amendments have been explained in some detail to the Committee by my officials and that consensus has been reached in tabling them. I thank the Committee for its patience in its detailed scrutiny of the Bill and these amendments, as well as the other amendments, which we will deal with later.

Cathal Boylan (Sinn Féin, Newry and Armagh)

Go raibh maith agat, a Cheann Comhairle. I pay tribute to the departmental officials, the Bill Office and the Committee staff and thank them for their assistance in bringing forward the Bill.

On behalf of the Committee for the Environment, I welcome the Consideration Stage of this important Bill, which is needed to deal with all matters relating to the regulation of road freight operators. The Committee recognises that the Bill has the potential to enhance road safety, improve the image of the freight sector and contribute to the fight against organised crime. It has been a long time coming, and I will take the opportunity to say a few words on the key recommendations that have been made during the Bill’s Committee Stage.

The Bill was referred to the Committee on 21 May 2008, and members conducted detailed scrutiny in which they made recommendations and prompted amendments, where the Committee deemed necessary. The good working relationship that was established between the Committee and departmental officials paid dividends when it came to agreeing those recommendations.

The Committee made three recommendations that very much relate to the Bill, although they are not directly linked to it. One recommendation relates to planning, and I will come back to that later when we debate the relevant clause. The other two recommendations are concerned with enforcement.

The Committee discussed effective enforcement of the Bill at length. On the basis of information that many stakeholders gave, the Committee recommends that, in implementing the Bill, enforcement should be delivered separately from the regulation. That happens in England, Scotland and Wales through the appointment of traffic commissioners, who, among their other functions, operate independently to enforce goods vehicle licensing legislation.

None of the members who where present when the commissioner for the North Western Traffic Area in England attended the Committee are likely to forget her evidence, and I pay tribute to Mr Trevor Clarke in relation to that. However, her evidence, along with the support of many stakeholders, persuaded the Committee that the feasibility of the appointment of a traffic commissioner should be looked at more closely. Therefore, the Committee recommends that the Department pursue the feasibility of the appointment of a traffic commissioner who would have statutory responsibility for, among other things, the licensing of goods vehicles here.

I believe firmly that the discussions in Committee between members and departmental officials had the outcome of producing better legislation. All the benefits that should come from the legislation will be enhanced if the Minister takes on board the Committee’s recommendations for better enforcement.

I now turn to the first group of amendments. The Minister outlined carefully the nature and purpose of these amendments, and I will give the Committee’s position on them. As we heard, amendment Nos 1 and 2 to clause 1 and the removal of schedule 1 aim to make the definition of small goods vehicles clearer and to create less ambiguity about what will be in and out of the scope of operator licensing. The Committee recognised that as a crucial part of the Bill, and it questioned the Department at length on which vehicles would be affected by the Bill and the principles on which exemptions would be decided.

Having heard evidence from the Ulster Farmers’ Union and the Horticultural Trades Association, the Committee was particularly concerned about the potential impact of the Bill on the farming sector. It also queried the impact that it would have on emergency services and government vehicles. Therefore, the Committee welcomes these amendments, which will clarify the meaning of small goods vehicles, and it thanks the Minister for taking its concerns into consideration.

The other amendments in the group are consequential, and I will refer to the Committee’s position at a more relevant time, suffice it to say at this point that the Committee agreed to and welcomes amendment Nos 8, 9 and 10 as proposed by the Department.

William Hay (Speaker, Foyle)

Before I call Mr Weir to speak, on behalf of the Assembly, I extend my warmest welcome to our guests from America. A senior delegation of Congressmen and Congresswomen are visiting Northern Ireland. I know that I speak for the whole House in welcoming you to Parliament Buildings this morning. I wish you well, and I thank you for coming.

Peter Weir (DUP, North Down)

I am sure that our visitors from America will be delighted to see this great moment of democracy in action. I am sure that Congress discusses little other than the Goods Vehicles (Licensing of Operators) Bill, particularly its Consideration Stage and the definition of a small goods vehicle.

With that spirit of friendship across the water in mind, I welcome this group of amendments. As a member of the Committee for the Environment, I attended meetings during the Bill’s Committee Stage. The Committee was conscious of the need to ensure that the legislation was right and that the proper balance was struck. The Minister and the Department have acknowledged that the amendments are not the whole picture, and that is an important point. To try to ensure that everything in the legislation is right, the consequential regulations to be put in place will also be significant.

As indicated by the Deputy Chairperson of the Committee, when we scrutinised the Bill in detail, certain areas were of concern to us. Although the amendments will deal with a certain number of those, regulations may be the most appropriate way to deal with some of the issues.

In striking a balance, it is important to ensure that the amendments do not affect the main purpose of the Bill. Although some concerns were raised about the Bill, and that led consequently to the amendments, the Bill, as a whole, has a very useful purpose, as the Minister outlined. It deals with a range of issues. It is important that we ensure — I think that it is the case — that the amendments do not impinge on the central thrust of the Bill, whether in relation to road safety or to ensuring that people are on a level playing field when it comes to the transport of goods.

The vast majority of users of goods vehicles are reputable and operate in a fashion that meets the safety requirements that exist already. The regulations would be put in place to protect those users and those who are involved in freight transport as much as possible. We have an unfortunate problem in Northern Ireland in that, because of the lack of regulation in the past, our reputation throughout Europe has not been as good on that issue as perhaps it should be. That creates problems for many of our drivers who are fulfilling all the criteria when they go across the water. The Bill is as much about protection of the industry and those who are involved at the front line as it is about regulation. That is why the legislation is welcomed by most of the relevant bodies.

I am glad to see amendments and to see that they do not impinge on but actually protect the central aspects of the Bill. However, the other aspect is that, although that protection and regulation is needed, as was indicated by the farming community and those who are involved in light transport, it is important that the regulations are not unnecessarily onerous on the single operator or on people who are simply moving about, for example, food products or goods relating to the farming industry. The amendments consider the scope of operating licences — the bulk of that will come through regulations — the issue of consignment notes and the definition of a small goods vehicle.

The amendments are an attempt by the Department to meet the concerns that were raised by the Committee and to ensure that what is put in place is fair across the system, so that people can have a level playing field, and does not place a particularly onerous burden on the sector, particularly those who use small goods vehicles. Other issues have been touched on: for example, operator centres. I think that that issue is best dealt with by way of the regulations. Committee members will be looking for provisions on that in the regulations to ensure that we have a level playing field.

The amendments in group 1 provide a degree of balance between ensuring that there is regulation to achieve the aims of the legislation and ensuring that the burden is not onerous. I am, therefore, happy to support the amendments.

Roy Beggs (UUP, East Antrim)

I am content with the Bill and the amendments. The evidence that we received at the Committee, particularly from the traffic commissioner for the north-western area, ensured my support for moving forward in this area. We have to improve the standard of the vehicles on our roads to improve road safety and the protection of all our road users, including pedestrians who might get caught up in accidents. The owner-account section has, to date, been exempted from this type of scrutiny, and there has, therefore, been a danger of substandard vehicles on our roads; some operators may have been undercutting others who operate to a higher standard.

The Bill is a considerable move forward; it is long overdue and will bring Northern Ireland into line with other parts of the United Kingdom. The operators will have additional costs, but they will also make savings by carrying out preventative maintenance rather than reacting when their vehicles reach a critical stage. The Bill will bring the considerable benefit of increased road safety.

The Committee heard evidence that criminals are using heavy goods vehicles to move goods about and that that has caused difficulties for the police. The new regulation will provide an ability to prevent those who abuse the system by using those vehicles from being allowed to operate them and will lessen that aspect of organised crime.

I also appreciate the manner in which the depart­mental officials and the Minister, who has acceded to the amendments, have shown flexibility, particularly by using affirmative secondary regulations to finalise exemptions. That will bring about improve­ments and the flexibility to allow the Department to react. If we do not get the legislation exactly right, we will be able to listen, and, if adjustments are needed, they can be made easily in the future.

I am content with the Bill and the amendments. Support has come from most people in the industry, including the Freight Transport Association and the Road Haulage Association, to improve standards and make operators more professional and better regulated. The Bill will allow the authorities to concentrate on those who are not ensuring that their vehicles are maintained to the highest standard.

David Ford (Alliance, South Antrim)

I express my general support for the principles of the Bill and for the amendments. A few months ago, we reached the Consideration Stage of the Taxis Bill, and I remember saying that it was like the penultimate meeting of a rather sad club that had met on many occasions. However, the membership of the club has changed somewhat. In particular, there is a new Minister, who was not subject to all the difficulties that some of us went through. Indeed, time took its toll on the Committee; some of its members did not have the excitement of going through the process. It is good to see that the same smiling faces are sitting in the Minister’s Official Box, watching as we debate the penultimate stage of the Bill.

Roy Beggs (UUP, East Antrim)

Does the Member agree that, perhaps, we were fortunate that there was a change of Minister? The information that came back to the Committee was that the previous Minister was minded not to proceed with the Bill. Is that correct?

David Ford (Alliance, South Antrim)

I am not sure whether the Member wants me to join in praising one member of the Democratic Unionist Party or in attacking another. I agree that there seems to have been some delay in reaching this stage, but, under the current Minister, we have at least reached it. I am glad that the current Minister listened to the Committee, and, in particular, that the Committee was able to agree certain issues with his officials as we examined the detail of the Bill. As the Deputy Chairperson said, some of us have worked on the Bill since May 2008. Perhaps the Committee did not have as many sessions on this Bill as we had on the Taxis Bill, but, at times, it began to seem like it.

A number of improvements has been made, which the amendments recognise. I endorse those, particularly the fact that we have dealt with the definition of a small goods vehicle in a way that reduces the potential for over-onerous burdens on one-man or two-man businesses. Farmers, the horticulture industry and representatives of small tradesmen who use a single vehicle for themselves made that complaint about the original proposals.

I have a slight concern, and the Minister should consider whether there may be some difficulty over the issue of what could be described as large fleets of small vehicles. We have addressed the legitimate concerns of small operators about the size of a vehicle and the size of a business, but a slight difficulty may have been created on that issue. I will be interested to hear the Minister address that point in his summing-up remarks.

The Committee has dealt with a variety of matters that did not occur when similar legislation was introduced across the water, such as the danger that rogue cross-border operators will cut into the business of legitimate operators in Northern Ireland. I certainly hope that we will see — it does not currently seem to be the case — appropriate legislation being passed in the Oireachtas to ensure that operators in Northern Ireland get fair treatment on an all-Ireland basis.

As Peter Weir said, with the eloquence that we expect from someone in his profession, the regulations that we will have to face will, ultimately, be as significant as the Bill itself. We look forward to seeing the Department produce those regulations as quickly as possible, because there is a serious need to deal with the road safety problems being caused by a small number of rogue operators, the people who create difficulties as they proceed to GB or the continent.

It is not too many months since I was driving along a motorway in Wales and saw that a vehicle with a Northern Ireland registration had been pulled in for a check by traffic police. That shows the unfortunate reputation that a minority of bad operators have given the great majority of legitimate Northern Ireland goods vehicle operators. The Assembly must ensure that legislation is passed to defend the reputations of good operators who abide by regulations and deserve to be supported.

Some colleagues have mentioned the evidence that was given by the traffic commissioner for north-west England. I regret that it has not been possible to include provision for an independent traffic commissioner in the Bill. However, the Department must keep the matter under review and may well need to address it in the near future.

At present, the Bill and its proposed amendments represent a significant step forward. I support them fully.

Trevor Clarke (DUP, South Antrim)

Some Members may wonder why I am speaking in the debate as I am no longer a member of the Environment Committee. I am speaking because I oppose the Bill and, therefore, do not want to disappoint officials by not speaking in the debate. I like my message to be consistent.

(Mr Deputy Speaker [Mr Molloy] in the Chair)

Although I welcome some of the Minister’s changes to the Bill, I am still disappointed with certain provisions. Indeed, there are a few on which I seek clarification. I prefer that small operators with 3·5-ton vehicles be exempt from this particular process and that it apply only to operators whose vehicles weigh at least 7·5 tons. I welcome the fact that the Minister has taken on board some of the suggestions that I made in Committee and has made minor amendments in that regard.

Unlike Mr Ford, I am not disappointed that provision for a traffic commissioner has not been included in the Bill: I welcome that fact. I found the commissioner to be overbearing in her role. She put herself on a pedestal.

David Ford (Alliance, South Antrim)

I thank the Member for giving way. I wondered whether that represents a further split between Trevor Clarke and his DUP colleagues. It is always interesting to count them up.

Trevor Clarke (DUP, South Antrim)

The DUP is a democratic party; its members are entitled to their own views. I am taking part in the debate so that I can express my view.

Unlike Mr Beggs, I am not sure that the Bill will reduce organised crime. I still have concerns about that, and I hope that the Department will do more work in that regard. The enforcement team will have work to do, because I do not envisage that many gangsters will apply for operator licences.

Roy Beggs (UUP, East Antrim)

Does the Member not accept that, if criminal gangs do not have lorries, they will not be able to move goods around illegally? If they attempt to do so using someone else’s lorry, that operator will risk losing his or her licence. That will, therefore, make life much more difficult for criminals.

Trevor Clarke (DUP, South Antrim)

I just do not know how naive Roy Beggs is at times. From my recollection, criminals steal lorries or buy them at auctions. We have heard consistently about illegal fuel lorries on the roads. However, the criminals do not actually acquire those vehicles by legal means. Therefore, I do not believe that the Bill will deter them from continuing that activity. Officials will have a job to do. I call upon them to do more enforcement work in order to tackle organised crime rather than monitoring legitimate businesses.

I welcome that the purpose of the legislation is to increase road safety for operators in the sector. I thank the Minister for accepting the amendments, and I support the Bill.

Daithí McKay (Sinn Féin, North Antrim)

Go raibh maith agat, a LeasCheann Comhairle. I welcome the Consideration Stage of the Bill and the important part that the Bill will play in improving the image of the freight sector. The Goods Vehicles (Licensing of Operators) Bill had been put on the long finger for a number of years by direct rule Ministers. The industry has been crying out for such a Bill, and it is, therefore, important that we get it right.

Ireland, North and South, has some of the worst transport standards in Europe, and although new legislation to bring the North up to speed has been on the table since the 1990s, it was never progressed. As the Deputy Chairperson of the Committee said, the legislation has been “a long time coming”. I hope that the Bill marks the start of a process of implementing legislation across the island and that the Southern Administration will introduce similar legislation to ensure a degree of consistency.

The Committee debated the Bill extensively, and it considered that enforcement should remain separate from the legislation to ensure its effectiveness. The possibility of appointing a traffic commissioner should be further considered. I echo what other Members said about the importance of having a clear definition of a small goods vehicle, and amendment Nos 1 and 2 to clause 1 help to provide that much-needed clarity.

Sinn Féin supports the adoption of all the amend­ments in group 1, as well as those in groups 2 and 3, because it is vital that the reputation of the Irish freight and transport industry be improved. The new Bill provides the opportunity to do exactly that. The legislation is important for the industry’s reputation, and for road safety and haulage drivers.

John Dallat (Social Democratic and Labour Party, East Londonderry)

I was appointed to the Committee for the Environment only recently so I missed the excitement of its discussions. I apologise on behalf of the Chairperson of the Committee, Dolores Kelly, who is not here this morning because she is dealing with a family bereavement.

The SDLP welcomes and supports the Consideration Stage of the Bill. I was told recently that up to 70% of goods vehicles could have serious safety deficiencies; the legislation is, therefore, important. I underline the fact that good operators deserve good legislation and strong enforcement. The road freight industry is dependent on investment from good operators, but their efforts are undermined by rogue operators who make no such investment. In light of the alarming reports about operators that we hear from time to time, it is extremely fortunate that the number of road traffic incidents has not been higher. That point has become particularly relevant since the expansion of the European Union led to many vehicles from other countries coming here.

I spent more than an hour trying to get through Newry last night, largely because of heavy goods vehicles, so I do not want to miss the opportunity to highlight the fact that the railway line that runs alongside the road is not operational. That is not a matter for today, but we must, at some stage, consider moving much of the freight from the roads to the railways.

In general, the SDLP warmly welcomes today’s progress. At the beginning of the debate, Peter Weir said that the matter was not, perhaps, the most exciting, but it is a serious one.

Edwin Poots (DUP, Lagan Valley)

I thank Members for their contributions. The Deputy Chairperson, speaking on behalf of the Committee, raised several issues, and I hope to deal with those. The Bill sets out the main provisions for the enforcement of the licensing of operators of goods vehicles. In the main, those provisions were reproduced from the Transport Act (Northern Ireland) 1967, which applies to operators who transport goods and passengers by road.

The Department will have the power to stop and enter vehicles and to enter premises in which vehicles are kept. That power does not apply to private homes unless an application for a magistrate’s warrant has been granted. If it is believed that an offence has been committed, the Department will have the power to seize documents. The Department may require the owner, driver or user of a vehicle to provide certain information and documents, such as the name and address of the owner, a description of the goods being carried and the journey details.

A person who either wilfully obstructs an officer or fails to produce documents will be guilty of an offence and will face a fine up to level 3, which is a £1,000, six months’ imprisonment or both. The Bill will allow the Department to issue a certificate containing certain defined information as evidence for court proceedings.

Schedule 3 contains details of a new power to detain goods vehicles that are used without an operator’s licence. Schedule 3 contains regulation-making powers, which will provide for the following areas: the detention of a vehicle and its contents; fixing an immobilisation device to a vehicle or arranging for it to be moved from the roadside — tampering with or removing a clamp will be an offence that will attract a fine of up to £1,000, and tampering with or removing a notice of immobilisation can carry a fine of up to £500; the arrangements for the return or disposal of a vehicle and its contents; the proceeds of the sale of property; and the procedure to be followed when a dispute occurs over the return or disposal of a vehicle’s contents or the proceeds of any sale. Anyone making a false declaration to secure the return of a vehicle will be guilty of an offence that attracts a fine of £5,000, up to two years’ imprisonment or both. Therefore, the powers of enforcement are fairly extensive. The issue then comes down to having an adequate number of staff to deal with that.

I welcome the Committee’s view on the need to define “in scope” and “out of scope” clearly, and that will be dealt with further in regulations.

Mr Weir rightly identified the issue about protecting the industry, which is why the industry sought for us to introduce the Bill. Operators who carry out their job in a professional manner will no longer be faced with the problem of being undercut by people who operate to lower standards, which is a serious issue. For example, if an overtired driver operates a vehicle that is overweight and has a faulty brake cylinder, there could be dangerous consequences. That is why we need to ensure that operators keep vehicles at the optimum standard.

The issue of operation centres will be dealt with in regulations. In devising those regulations, I will seek to ensure that we are practical, do not create onerous burdens and respond to real issues such as I have just described.

Mr Beggs indicated that the legislation is overdue, and he referred to organised crime. It will always be difficult to pursue criminals who are happy to operate outside the law. Nonetheless, the Bill creates a better licensing and regulation system that will make it easier to catch those criminals.

Mr Ford said that time had taken its toll on the Committee. I understand that the Member looked about 25 years old when the process started, so it certainly has taken a severe toll on him. He referred to the issue of onerous burdens, as did Mr Weir, and that has been taken on board.

The Bill deals with vehicles that weigh more than 3·5 tons, regardless of whether they are large fleets of small vehicles. Therefore, the issue is not about the size of the fleet but about the Bill applying to small or large goods vehicles that weigh more than 3·5 tons. Trevor Clarke would have preferred the Bill to apply to vehicles that weigh more than 7·5 tons as opposed to 3·5 tons, and we have considered that issue. However, European Union legislation makes it impossible to move away from that 3·5-ton requirement. That is why the Bill has proceeded using that weight and not a greater weight.

As a result of Trevor Clarke’s intervention, we dealt directly with the issue of consignment notes. His opposition and agitating in Committee has certainly delivered results.

We see that as beneficial because consignment notes were not operating in the rest of the United Kingdom and would not have brought any significant benefit to the Bill. I thank Mr Clarke for that.

Mr McKay and Mr Dallat made general comments, and I have nothing to respond to in that respect.

Amendment No 1 agreed to.

Amendment No 2 made: In page 1, line 16, at end insert

“(2A) For the purposes of subsection (2)(a) a goods vehicle is a small goods vehicle if—

(a)it does not form part of a vehicle combination and—

(i)it has a relevant plated weight not exceeding 3.5 tonnes, or

(ii)in the case of a vehicle which does not have a relevant plated weight, it has an unladen weight not exceeding 1525 kilograms; or

(b)it forms part of a vehicle combination and complies with such conditions as may be prescribed;

and ‘relevant plated weight’ in paragraph (a) means a plated weight of the description specified in relation to that paragraph by regulations.” — [The Minister of the Environment (Mr Poots).]

Clause 1, as amended, ordered to stand part of the Bill.

Clauses 2 and 3 ordered to stand part of the Bill.

Francie Molloy (Sinn Féin, Mid Ulster)

We now come to the second group of amendments for debate. With amendment No 3, it will be convenient to debate amendment Nos 4, 5, 6, 7, 12, 13 and 14. The amendments deal with a number of technical matters. Amendment Nos 5, 6 and 7 are related, and Members will wish to bear that in mind when the Questions are being put.

Edwin Poots (DUP, Lagan Valley)

I beg to move amendment No 3: In page 4, line 4, at end insert “(if any)”.

The following amendments stood on the Marshalled List:

No 4: In page 4, line 5, after “fee” insert “(if any)”. — [The Minister of the Environment (Mr Poots).]

No 5: In clause 24, page 20, line 36, leave out subsection (3). — [The Minister of the Environment (Mr Poots).]

No 6: In clause 24, page 20, line 39, leave out “subsection (3)” and insert “section 26(1)”. — [The Minister of the Environment (Mr Poots).]

No 7: In clause 26, page 22, line 17, after “first” insert

“giving the holder of the licence or (as the case may be) the person concerned notice that it is considering doing so and”. — [The Minister of the Environment (Mr Poots).]

No 12: In clause 55, page 36, line 19, leave out “commissioners” and insert “authority”. — [The Minister of the Environment (Mr Poots).]

No 13: In clause 57, page 38, line 17, after “section” insert “1(2)(d), 12(12) or”. — [The Minister of the Environment (Mr Poots).]

No 14: In schedule 3, page 47, line 29, leave out from “for” to end of line 30 and insert

“authorising a vehicle detained by virtue of paragraph 1 to be returned to the owner, in prescribed circumstances, without the need for any application under paragraph 8.” — [The Minister of the Environment (Mr Poots).]

The second group of amendments is largely made up of technical amendments that are intended to improve the drafting of the Bill. Amendment Nos 3 and 4 relate to clause 4; amendment Nos 5 and 6 relate to clause 24; amendment No 7 relates to clause 26; amendment No 12 relates to clause 55; amendment No 13 relates to clause 57; and amendment No 14 relates to schedule 3.

In common with the amendments in the first group, all the amendments in the second group have been explained in detail to the Committee and a consensus has been reached.

Members will be aware that the Bill is largely a replication of the Goods Vehicles (Licensing of Operators) Act 1995 in Great Britain. Late last year, that Act was amended by the Local Transport Act 2008, and I want to make sure that the Goods Vehicles (Licensing of Operators) Bill is up to date with GB legislation.

Amendment Nos 3 and 4 are minor, adding the words “(if any)” to the existing phrase, “the prescribed fee”. That is necessary to take account of situations in which no such fee is prescribed. Such a situation would arise if an operator were adding a specific vehicle to a licence and a fee for a previously removed vehicle had already been paid. Obviously, in that situation, a further fee would not be required.

Amendment Nos 5, 6 and 7 are interrelated. The purpose of those amendments is to remove an anomaly in the way in which the Department handles disciplinary proceedings against a licence holder. Currently, under clause 26, the Department “shall not” give a direction to revoke, suspend, curtail or disqualify without first holding an inquiry if a licence holder requests that it do so. The problem is, how does the licence holder know to ask for an inquiry when, except for a standard licence revocation in clause 24(3), there is no requirement on the Department to tell the license holder? To make clause 26 work correctly, the Department would have to issue such a notice administratively. It is best to provide for that in the Bill, and, in doing so, remove any potential for misunderstanding. Taken together, amendment Nos 5, 6 and 7 will impose a responsibility on the Department to issue a notice on all occasions. The functions relating to those amendments — revocation, suspension, curtailment and disqualification of licences — are all departmental functions under the Bill, whereas, in GB, the same functions are dealt with by independent traffic commissioners.

In its report, the Committee made two recommendations in that regard, which I will now address.

First, the Committee felt that the licensing function should be separated clearly from the enforcement function. At present, both come under the remit of the Driver and Vehicle Agency. I can provide assurance that, when implementing the Bill, the licensing function will be administered separately from the DVA, which will retain the enforcement function.

The Committee also recommended that the Department pursue the feasibility of appointing a traffic commissioner for Northern Ireland who would have statutory responsibility for, among other things, goods vehicles licensing. Given that the powers in the Bill are exactly the same as those given to traffic commissioners in GB and that there will be a separation of the licensing function, my predecessor, Minister Wilson, decided not to pursue the traffic commissioner option. That position will be kept under review, so we are not ruling the option in or out for the future. However, the present task will be to implement the Bill’s provisions as quickly as possible.

Amendment No 12 is a small, technical amendment. I want the Bill to apply to anyone using a relevant vehicle on any road in Northern Ireland. Crucially, that includes roads in harbour estates. The intention of clause 55 has always been to ensure that the Bill applies to harbour areas. However, it appears that the use of the term “harbour commissioners” in a general sense to describe the bodies that control harbour areas is wrong, because a number of harbour areas are not under the control of commissioners and, therefore, will be excluded from the provisions of the Bill. That is why I propose to amend clause 55 by replacing the term “commissioners” with the more comprehensive term “authority”.

The Committee tabled amendment No 13 to clause 57. I thank the Chairperson and the Committee, and I am happy to accept that amendment, because I agree completely with its proposals. As drafted, the Bill provides for a wide range of regulation-making powers. All but two of those powers will be subject to negative resolution. In oral evidence sessions in the Committee, my Department was challenged to look again at all the Bill’s secondary legislation-making powers. During that process, the Department agreed that the regulations in clause 1(2)(d) on exemptions and in clause 12(12) on the extension of professional competence, which are requirements for restricted licence holders, should be subject to affirmative resolution. Therefore, I agree to the amendment of clause 57(9) to include those two clauses.

Amendment No 14 is the final amendment in the group and relates to paragraph 7 of schedule 3 to the Bill. It will give the Department power to make regulations for a vehicle that is detained under the schedule to be returned to its owner. Further regulations under paragraph 8 require the owner to apply to the Department for the return of the vehicle. The proposed amendment makes it possible for the vehicle to be returned without the owner having to apply for it. That amendment, which is included already in the corresponding GB legislation, will mean that there is a consistent approach across the systems in GB and Northern Ireland.

Cathal Boylan (Sinn Féin, Newry and Armagh)

Go raibh maith agat, a LeasCheann Comhairle. I send the Committee Chairperson’s apologies to the House; it was remiss of me not to mention that earlier.

Departmental officials briefed the Committee fully on all the technical amendments. The Committee had initial concerns about clause 4(4), not least because it is not included in comparable legislation across the water. Therefore, the Committee sought more information from the Department on the reasons for its inclusion. Having been advised by the Department that clause 4(4) would allow for better enforcement of the legislation, provide in law what England, Scotland and Wales have in practice already and provide what is required by EU law, the Committee accepted its inclusion. The Committee also approved amendment Nos 3 and 4 to other subsections of clause 4 to keep the Bill up to date with similar legislation across the water.

Earlier, I mentioned the importance that the Committee attached to vehicles that will be exempt from the Bill. That will be dealt with through a secondary legislation-making power, which the Committee urges the Department to make subject to draft affirmative procedure so that the highest level of Assembly scrutiny applies to such an important decision.

Similarly, the Committee had concerns about the power to prescribe a date on which stricter requirements could be placed on applicants for a restricted licence. Members felt that such a measure could introduce an element of discretion into the enforcement of the Bill and questioned the risk of inconsistency. The Department tried to allay concerns by explaining how its discretion might be used and noted that an appeals procedure would ensure that inconsistencies could be addressed. Nonetheless, the Committee was keen for extra scrutiny to be associated with that secondary legislation-raising power and urged the Department to make it subject to draft affirmative procedure. The Committee thanks the Minister for taking those concerns into consideration and welcomes amendment No 13, which will bring those procedures into effect. The Committee agreed all other proposed amendments in the group.

David Ford (Alliance, South Antrim)

I am pleased that the Minister referred to traffic commissioners, and I thank him for proposing to keep that matter “under review”. However, what does “under review” mean in the context of legislation?

I appreciate his points about the separation of licensing and enforcement functions. The reality is that the DVA is an agency of his Department, and we appear to be creating a situation that is somewhat analogous to that of the Northern Ireland Environment Agency and the Planning Service, both of which are agencies of the Department, and, therefore, it is possible to question the degree of independence between their functions.

With that in mind, will the Minister tell the House how the system will operate, given the practical realities, to ensure maximum possible separation? Moreover, will he outline a timescale in which he will consider whether it is better to move towards the concept of establishing traffic commissioners as an entirely independent body?

Edwin Poots (DUP, Lagan Valley)

I thank the Committee for its general support of the legislation. It is useful that the Department has worked closely with the Committee to reach this stage of the legislation.

Mr Ford mentioned the traffic commissioner. Legislation would be required to introduce a traffic commissioner in Northern Ireland. The current system allows a degree of independence and flexibility, and DVA carries out the licensing aspect. Therefore, we believe that there can be a degree of independence and separation between the two functions even though they are in the same Department. A commissioner would be funded by my Department, too. Therefore, someone who makes the case that there is no true independence because those who pay the piper call the tune could do so in relation to a traffic commissioner, although the title “independent” would be added.

I have always been reluctant to remove powers from the Assembly and the House, where people are accountable to elected representatives. I have always been somewhat reticent about giving powers to people who are independent from political scrutiny. Ultimately, politics is, for good or ill, the voice of the people. We are elected by the people to do a job for the people. Therefore, it is always better that the public’s serious concerns about how governance is being delivered can be addressed through challenges to the process from individuals such as Mr Ford. A process that lacks an independent challenge mechanism for politicians creates real difficulties for the public.

Amendment No 3 agreed to.

Amendment No 4 made: In page 4, line 5, after “fee” insert “(if any)”. — [The Minister of the Environment (Mr Poots).]

Clause 4, as amended, ordered to stand part of the Bill.

Clause 5 ordered to stand part of the Bill.

Cathal Boylan (Sinn Féin, Newry and Armagh)

Go raibh maith agat, a LeasCheann Comhairle. From the outset of its scrutiny, the Committee had reservations about the potential effect of the Bill on planning processes. In particular, the Committee was worried about the Bill’s effect on owners of small businesses who are based at home and are required to designate their homes as operating centres. The Committee, therefore, seeks the Minister’s assurance that the designation of a property as an operating centre will not, in itself, have any read-across to planning action, nor will it be used by, or influence any action of, the Planning Service as to the use of the property.

Ian McCrea (DUP, Mid Ulster)

First, I thank the Clerk of the Committee for the Environment and the Committee staff, who had a major task to get everything right for today, including the drafting of the reports. Departmental officials also had a hard task, to say the least, in dealing with some of the issues raised, particularly by my colleague Trevor Clarke. I welcome the fact, as the Minister said, that the Department was able to take on board the issues that were raised and amend the Bill accordingly.

As the Deputy Chairperson said, one of the main issues with clause 6 was the question of planning permission for operating centres owned by operators of small businesses who are based at home. In his contribution to the debate, the Deputy Chairperson sought clarity on the assurance that the designation of an operating centre will not have any read-across to planning action. I ask the Minister to clarify whether owners of small businesses who operate from home will require planning permission, and, if so, under what circumstances. Will he indicate whether there is a limit on the size of vehicle that can be kept at an operator’s home?

Trevor Clarke (DUP, South Antrim)

Again, I make no apology for being one of those who raised the most concerns about the operating centres. My feelings are similar to those expressed by the Minister in his reply to Mr Ford: I am an elected representative for the people and I want to work for them while I am here.

I can see how the Bill’s provisions for operating centres could have caused some difficulties. Although I am glad that the Minister has given us assurances that that will not be the case, I was disappointed when, on more than one occasion, Planning Service officials could not give the Committee clear guidance on how those provisions will work in practice. However, I trust that the Minister will use his authority to make it clear to the Planning Service that it must provide such guidance.

Like my colleague, I still have reservations about how the read-across will be determined. Will it apply retrospectively to people who are already in business? Will it prevent others who want to start businesses from doing so from an operating centre beside their homes? Will the rights that are granted to those who have been in business for several years follow them if they decide to relocate? There are still questions to be answered, and I hope that the Minister will provide some clarity.

Edwin Poots (DUP, Lagan Valley)

Clause 6 deals with operating centres. I will address the second of the three recommendations on operating centres that the Committee made in its report on the Bill.

Following a designation by the Department of a place as an operating centre under the Goods Vehicles (Licensing of Operators) Bill, the issue of read-across into interest or action by the Planning Service may be of concern to some. I assure Members that the designation of a property as an operating centre will not in itself have any read-across into planning action, nor will it be used by or influence any action by the Planning Service as to the use of the property.

Irrespective of that assurance, it is the responsibility of all landowners to ensure that the use of their property satisfies the requirements of planning laws.

Question put and agreed to.

Clause 6 ordered to stand part of the Bill.

Clauses 7 to 23 ordered to stand part of the Bill.

Francie Molloy (Sinn Féin, Mid Ulster)

The Minister has given notice of his intention to oppose clause 50’s standing part of the Bill and the associated schedule 4’s being agreed to. Clause 50 deals with documentation requirements for drivers of large goods vehicles.

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

Edwin Poots (DUP, Lagan Valley)

I oppose clause 50’s standing part of the Bill and the associated schedule 4’s being agreed to. Schedule 4 is a replication of schedule 5 to the Goods Vehicles (Licensing of Operators) Act 1995 in Great Britain and was originally included to enable Northern Ireland to remain in line with GB legislation. It contains provision for the carriage of consignment notes in large goods vehicles; namely, a document containing certain details about the nature of goods that are being carried in the vehicle. However, that provision of the GB Act has never been enacted or brought into operation. Furthermore, it appears that the provisions are out of date and would have to be amended before being commenced in Great Britain.

It would be best to remove clause 50 and schedule 4 from the Bill altogether. If the provision is ever needed, it can be made at that time. Removal of the clause and schedule will not affect the remainder of the Bill or the way in which goods vehicles operators are licensed.

Cathal Boylan (Sinn Féin, Newry and Armagh)

Go raibh maith agat, a LeasCheann Comhairle. The Committee welcomes the Minister’s opposition to clause 50 standing part of the Bill and schedule 4 being agreed to. The Committee questioned the need for separate additional classification for larger vehicles and the requirement for consignment notes to be carried. The Department indicated subsequently that it could find no justifiable reason for the inclusion of clause 50 and noted that the provision has never been enacted across the water. The Committee agreed that the Bill would be improved by excluding clause 50 and schedule 4.

Edwin Poots (DUP, Lagan Valley)

I thank the Committee for the views that have been expressed.

Question put and negatived.

Clause 50 disagreed to.

Clause 51 ordered to stand part of the Bill.

Francie Molloy (Sinn Féin, Mid Ulster)

We now come to the third group of amendments for debate. There is only one amendment, which is amendment No 11.

Edwin Poots (DUP, Lagan Valley)

I beg to move amendment No 11: After clause 51, insert the following new clause:

“Payment of grants

51A.—(1) The Department may, with the approval of the Department of Finance and Personnel, pay such grants to such persons or bodies as it considers appropriate in connection with any provision of, or the purposes of, this Act.

(2) Grants under this section shall be subject to such terms and conditions as the Department may, with the approval of the Department of Finance and Personnel, determine.”

The insertion of clause 51A will provide my Department with the power to make grants available to individuals or bodies in connection with operator licensing. Inclusion of that power is prudent and reflects a similar power that was included in the Taxis Act (Northern Ireland) 2008. It will give my Department the power to make grants in certain circumstances, although I do not envisage the power having to be used very often. Any grant to be made available would be subject to terms and conditions and the prior approval of the Department of Finance and Personnel.

Cathal Boylan (Sinn Féin, Newry and Armagh)

Go raibh maith agat, a LeasCheann Comhairle. Throughout the Committee Stage, members expressed misgivings about the impact that the Bill may have on small businesses. The Committee very much welcomes the Minister’s decision to insert clause 51A, which makes provision for grants to be paid to persons or bodies in connection with the provisions of the Bill. The Committee supports amendment No 11.

Francie Molloy (Sinn Féin, Mid Ulster)

I call the Minister to make a winding-up speech.

Edwin Poots (DUP, Lagan Valley)

I have nothing further to add, other than to thank the Committee for its support.

Francie Molloy (Sinn Féin, Mid Ulster)

I am sorry; I forgot to call Mr Alastair Ross. I now call Mr Alastair Ross.

Alastair Ross (DUP, East Antrim)

I am something of an afterthought, but, nevertheless, I welcome the opportunity to speak about this part of the Bill. The purpose of the Bill has been explained in relation to other groups of amendments. A few years ago, I was hit by a McCullough Transport lorry when I was driving my car, so I know from personal experience that those sorts of lorries can be lethal weapons on our roads. Certainly, any legislation to improve road safety is to be welcomed, and we have already heard that Committee members agree.

Many of the concerns have been dealt with in the earlier amendments, but we were concerned about the impact that this legislation will have on the industry as a whole and particularly on smaller operators. We were worried that, if we moved ahead of the Irish Republic, the industry in Northern Ireland would be at a disadvantage. The addition of clause 51A certainly goes some way towards alleviating some of those concerns by creating the power for the Department to make grants available to individuals or bodies in connection with operator licensing. We are aware that similar enabling legislation was included in the Taxis Act (Northern Ireland) 2008. The Minister stated that it is not envisaged that that power will ever need to be used. We hope that the industry is never at such an economic disadvantage that the Department will need to use the power. However, at least the Department, after approval from the Department of Finance and Personnel, can use that power if the industry needs help in the form of grants. I have no difficulty in supporting the new clause.

Edwin Poots (DUP, Lagan Valley)

I assure Mr Ross that he is not an afterthought. His contribution is always valued. I thank him for the comments that he made, and I agree fully with them, particularly in the spirit of party unity.

Question, That amendment No 11 be made, put and agreed to.

New clause ordered to stand part of the Bill.

Clauses 52 to 54 ordered to stand part of the Bill.

Francie Molloy (Sinn Féin, Mid Ulster)

Opposition to schedule 1 has already been debated and is consequential to amendment No 2’s having been made. Members are reminded that, if they do not want to agree schedule 1, they should say “No”, and, if they wish to agree it, they should call “Aye”.

Schedule 1 disagreed to.

Schedule 2 agreed to.

Francie Molloy (Sinn Féin, Mid Ulster)

Schedule 4 has been debated already, and the Minister has indicated his opposition to it. Members are reminded that, if they wish to support the Minister and do not want to agree schedule 4, they should call “No”. If they wish to agree schedule 4, they should call “Aye”.

Schedule 4 disagreed to.

Schedules 5 and 6 agreed to.

Long title agreed to.

Francie Molloy (Sinn Féin, Mid Ulster)

That concludes the Consideration Stage of the Goods Vehicles (Licensing of Operators) Bill. The Bill stands referred to the Speaker.

Members may take their ease for a minute.

Francie Molloy (Sinn Féin, Mid Ulster)

Members will have a copy of the Marshalled List of amendments detailing the order for consideration. The amendments have been grouped for debate in my provisional grouping of amendments selected list.

There are two groups of amendments, and we will debate the amendments in each group in turn. The first debate will be on amendment Nos 1, 2, 3 and 4, which deal with the process by which the Minister is appointed. The opposition to clause 2 notified by Alex Attwood and others will also be debated. The second debate will be on amendment Nos 5 and 6, which deal with the commencement of the Act.

I remind Members who intend to speak during the debates on the two groups of amendments that they should address all the amendments in each group on which they wish to comment. Once the initial debate on each group has been completed, any subsequent amendments in the group will be moved formally as we go through the Bill, and the Question on each will be put without further debate. The Questions on stand part will be taken at the appropriate points in the Bill. If that is clear, we shall proceed.

Francie Molloy (Sinn Féin, Mid Ulster)

We now come to the first group of amendments for debate. With amendment No 1, it will be convenient to debate amendment Nos 2, 3 and 4 and opposition to clause 2, as notified by Alex Attwood and others.

Those amendments deal with the process by which the Minister is appointed. Clause 2 sets out a model for the appointment of the Minister. The amendments would place reporting obligations on the First Minister and deputy First Minister relating to the establishment of the Department and the appointment of the Minister, with implications for that appointment.

Those amendments are also related to amendment No 5 in group 2, which deals both with the commencement and sequencing of the appointment of the Minister. I draw it to Members’ attention that amendment No 1 is a paving amendment for amendment Nos 2, 3 and 4. Amendment Nos 3 and 4 are consequential to amendment No 2.

I call Mr Alex Attwood to move amendment No 1 and to address the other amendments in that group and his opposition to clause 2.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

I beg to move amendment No 1: In page 1, line 2, after “established” insert “upon the designated day”.

The following amendments stood on the Marshalled List:

No 2: New clause

After clause 2, insert the following new clause:

“Duty of First Minister and deputy First Minister to report on certain matters

2A. The First Minister and deputy First Minister acting jointly shall make a report orally and in writing to the Assembly within seven days of the commencement of this section—

(a) outlining the functions that the Department of Justice is to exercise;

(b) explaining the provisions of paragraph 8 of Schedule 1 to the 2009 Act and, in particular, in the event that the Department of Justice is dissolved on 1 May 2012, the consequences of such dissolution for the exercise of the functions that the Department of Justice is to exercise, including such functions as may be conferred on the Department of Justice relating to—

(i) the imprisonment of offenders;

(ii) the compensation of victims of crime;

(iii) the provision of services in relation to forensic science;

(iv) the provision of services in relation to youth justice.

(c) explaining that paragraph 8 of Schedule 1 to the 2009 Act does not apply if the ministerial office of the minister to be in charge of the Department of Justice is filled under section 18 of the 1998 Act;

(d) explaining that the ministerial office of the minister to be in charge of the Department of Justice will be filled under section 18 of the 1998 Act if the Assembly fails within seven days of the date of the making of the report to approve a resolution endorsing the arrangement under section 2 of this Act for the appointment of the minister to be in charge of the Department of Justice.” — [Mr Attwood.]

No 3: New clause

After clause 2, insert the following new clause:

“Consequences of failure to report or endorse arrangement under section 2

2B. If—

(a) the First Minister and deputy First Minister acting jointly fail to make the report referred to in section 2A within seven days of the commencement of this section, or

(b) the Assembly fails within seven days of the date of the making of that report to approve a resolution endorsing the arrangement under section 2 of this Act for the appointment of the minister to be in charge of the Department of Justice

then section 2 of this Act shall be repealed as of the date of the expiry of that period.” — [Mr Attwood.]

No 4: New clause

After clause 2, insert the following new clause:

“Interpretation

2C. In this Act—

‘designated day’ means—

(a) if the First Minister and deputy First Minister acting jointly fail to make the report referred to in section 2A within seven days of the commencement of this section, the next day following the day upon which that period expires;

(b) if the Assembly fails within seven days of the date of the making of that report to approve a resolution endorsing the arrangement under section 2 of this Act for the appointment of the minister to be in charge of the Department of Justice, the next day following the day upon which that period expires;

(c) the next day following the day of the approval of the resolution by the Assembly referred to in section 2B(b);

whichever is the earlier.

‘the 1998 Act’ means the Northern Ireland Act 1998;

‘the 2009 Act’ means the Northern Ireland Act 2009.” — [Mr Attwood.]

I thank the Business Office and other Assembly staff who provided significant assistance to me and the SDLP when preparing the amendments, and I thank those who agreed to the amendments being tabled in the form that we have before us. In addition, I thank the First Minister and the deputy First Minister for attending. It will be interesting to see whether at least one of them lasts the pace in the course of the next number of hours.

I will speak to the first group of amendments: amendment Nos 1, 2, 3 and 4 and the opposition to clause 2. Before I get into the detail of the amendments and the reasons that inform the SDLP’s thinking about them, it would be fair to capture, on the one hand, what opposition to clause 2 means and, on the other, what amendment Nos 1, 2, 3 and 4 mean. For the sake of convenience, I shall do that before I get into technical and political details.

Ultimately, the purpose of the amendments is simple and the purpose of opposing clause 2 is simple. If clause 2 falls, the only provision for filling the justice Minister position will be that in the Northern Ireland Act 1998. Since then, under legislation in 2006, 2007 and 2009, there have been various models that, further to negotiation, might be used to fill the justice Minister position. I am not going to rehearse those models, because, subsequent to political negotiations, various Secretaries of State amended that large menu of models in the House of Commons. In the SDLP’s view, opposition to clause 2 captures the fact that those models are not appropriate. The appropriate way to proceed is to revert to the provisions in the Good Friday Agreement for electing Ministers to office. At the end of my speech, I will explain why the SDLP believes that opposition to clause 2 is the right way to proceed from the point of view of the law, the party’s politics and the community’s needs.

Amendment Nos 1, 2, 3, and 4 approach the matter in a different way. In essence, they invite the First Minister and the deputy First Minister to come clean to the Assembly and explain in the course of the debate or, under the proposed amendment, at a subsequent time the consequences in May 2012 if there is no agreement at that time about how the justice Ministry portfolio will be filled. The SDLP has a view about the procedure that will kick in then. We are asking the Assembly to stand back from the politics and the current toing and froing on the devolution of policing and justice and, as a legislature, create legal certainty and political confidence in what will happen in 2012. The SDLP is saying that, if the Assembly does so, it will be acting in a manner that will avoid damaging public confidence at that time.

The SDLP’s amendments invite the Assembly to consider the true consequences and risks in 2012 of following the route proposed by the First Minister, the deputy First Minister, the DUP and Sinn Féin. We suggest that the Assembly considers those difficult matters afresh and looks on our amendments as a way to navigate through them in order to come to a conclusion that is consistent with and supports the amendments. That is, essentially, the political argument that the SDLP advances for its position on clause 2 and for amendment Nos 1, 2, 3 and 4.

I turn to the consequences of amendment Nos 1, 2, 3 and 4. I will not detain the Assembly in respect of amendment No 1, which inserts the words “upon the designated day” into clause 1 after the word “established”. That can be understood only after consideration of amendment Nos 2, 3 and 4. After my explanation of those amendments, the significance of that insertion will become clear.

Amendment No 2 is the first of our substantive amendments. Its text is on the Marshalled List, so I will not read it out. Some will consider the amendment obscure, as not belonging to the real political world or not of immediate relevance. We say this: we are as close to May 2012 as we are to May 2007. We are 30 months into restoration and 30 months away from May 2012, when a serious risk to the authority of the Assembly and to public confidence may arise. Some see the amendment as obscure, irrelevant or not of the real world. However, when one considers the position 30 months after restoration and what may or may not happen over the next 30 months, it is clear that this is the moment when Members should stand back, create certainty and eliminate doubt and let Members, political parties and the wider community know what will happen in May 2012.

Almost everyone in the Chamber is of good intent, but not all. There are some here and outside who cling to a past that is already dying. However, in the round, Members have made essential political choices about the nature of society and the future of Irish democracy. I welcome that.

It is essential to understanding amendment No 2 and the SDLP’s proposed new clause that one cannot disregard the fact that, 30 months into restoration, it is impossible to divorce all the progress that we have made from the many issues on which progress has been slower than expected. We have not yet agreed a new shared future strategy; a date for the devolution of justice and important details connected with that; an Irish language Bill; a stadium at the Maze site; how best to manage disputed parades; or how to address the past.

Francie Molloy (Sinn Féin, Mid Ulster)

I ask the Member to focus on the Bill that is before the House and the issues associated with it.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

I concur, and I anticipated your intervention, Mr Deputy Speaker. I made those points because, as a result of the experience of the last 30 months, we should caution ourselves. In May 2012, under the provisions of the Bill, the justice Department will be dissolved. No one disputes that. People say that, between now and then, political agreement will be reached on what will happen in May 2012 so that we can avoid dissolution of the Department of justice.

The essential political point, and the point of proposed amendment No 2, is that, based on the experience of the past 30 years, no one in the Chamber can say with their hand on their heart and with total confidence and conviction that we will have resolved the issue of the election or nomination of a justice Minister by May 2012, thereby avoiding a situation in which the justice Department will be dissolved. Given what remains unresolved and the tensions and the toing and froing around the current devolution of justice negotiation, how can we be confident that 30 months from now — a hop, a skip and a jump in the lifetime of this country — the issue of the future justice Ministry will be resolved satisfactorily and that a new model will have been put in place to avoid the dissolution?

That is what the SDLP is inviting Members to consider today: it is inviting them to put themselves in the real political world of the moment and consider how that will play out during the next 30 months. We hope that, by 2012, our Assembly will have matured and our parties will have deepened their wisdom to have resolved those matters. However, we cannot have that certainty or conviction. Proposed amendment No 2 invites the Assembly to consider all of that, to work it through and, perhaps, to come to a conclusion, contrary to what orthodoxy suggests, that is consistent with what the SDLP says in the amendment. Essentially, proposed amendment No 2 enables the Assembly to work through the issues with its eyes wide open, aware of all the risks and pitfalls, and to put in place a mechanism to legislate against those issues.

Before I go through what new clause 2A of the Department of Justice Bill will mean if proposed amendment No 2 is accepted, I must explain something to the House. It is a convention and a standard of law and parliamentary practice in the North that, although direction and control of a Department rest with the Minister, it is the Department itself that holds the legal authority and powers. That is why the Northern Ireland Act 1998, and the various pieces of legislation that deal with the devolution of justice to the North, refer not to a Minister as having authority and power, but the Department. The Department has the power; the Minister has only command and control.

Therefore, let us think through the consequences of what happens in May 2012 when, as everybody agrees, under the current legislation and in the absence of other agreement, the justice Department dissolves. Mr Ford, or any other person who may be forthcoming, may be the Minister of justice, but the Minister for justice will not have a Department. It is a self-evident truth accepted by everybody that, under the current provisions and in the absence of agreement by May 2012, Mr Ford, Mr Kennedy or Mr Maginness — the last named would be my choice — [Interruption.] Any of those individuals, or any other individual, would have the ministerial car and may even have a ministerial office and people visiting that office. However, he or she would not have the ability to do anything in that office because the Department of justice will have been dissolved.

However, that is not the real issue about a Department of justice being dissolved in May 2012. Proposed new clause 2A(b) in amendment No 2 deals with that, as it would oblige the First Minister and deputy First Minister at a certain time — I will return to that in a minute — to come to the Floor of the Assembly and explain what will happen in 2012.

According to our view of the world and to our lawyers’ advice, in the absence of agreement in May 2012, there will be dissolution. The consequence of that would be the criminal justice system not just grinding to a halt, but being put in potentially grave risk. Although a Minister may be in office, what happens when a Department does not exist? What happens to the management of the Prison Service, the payment of compensation to victims, police forensic science work, and youth justice provisions?

All those functions are mentioned in amendment No 2, because they are all functions of a Department of justice. They would not necessarily be handled by a Minister for justice, but they would, nonetheless, be the Department’s responsibility. What happens with all those services and needs in the event of the Department not existing? What will be done about the risk to the public? Come May 2012, we face the potential of a Department no longer existing and, as a consequence, the criminal justice arrangements of which I spoke, and much besides, not being able to function and maintain good authority.

John O'Dowd (Sinn Féin, Upper Bann)

I am sorry for not having been here for the start of the Member’s speech, but I have been in the Chamber for about 15 minutes, and in that part of the Member’s contribution, he talked about when we reach failure, if we do not reach agreement, and the Armageddon that will happen in May 2012. Perhaps all our energies should be directed towards ensuring that we do reach agreement.

We all have a collective responsibility to ensure that 2012 is a date when the justice Ministry continues, local politicians continue to hold control of justice and policing powers and we have an effective system in place. Perhaps the Member should come round to that way of thinking, instead of doing what the SDLP has done thus far in not only this debate but in the entire debate about policing and justice, which is to focus on its negative role in politics rather than finding a positive and constructive role.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

Perhaps if the Member had been here for the beginning of my speech — although I am sure that his absence was for reasons beyond his control — he might have been minded not to make that intervention. I remind the Member that there was nothing negative about what the SDLP did in those difficult years up to 2007, when it went on the Policing Board to fulfil the mandate of the Good Friday Agreement that the devolution of policing and justice would happen in the context of ongoing implementation of policing and justice change.

We are having a debate today about the nature, character and timing of the devolution of justice and policing because the SDLP and others went about the task of implementing justice and policing change. If that job had not been undertaken by the SDLP and others — I have spoken in this Chamber and elsewhere about the fine and brave work that was done by the Ulster Unionist Party, the Democratic Unionist Party and the community members of the Policing Board — in very difficult circumstances, when there was suspension, when there were still people stealing information not far from here, robbing banks not far from here and demonising those who were in the police and those who were trying to endorse the policing arrangements —

Alex Maskey (Sinn Féin, Belfast South)

On a point of order, Mr Deputy Speaker. I wonder when Mr Attwood will go back to talking about the Bill.

Francie Molloy (Sinn Féin, Mid Ulster)

I think that the previous intervention led Mr Attwood into that particular angle. I am sure that he will get back on track.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

Thank you for that ruling, Mr Deputy Speaker. I will return to the Bill and to the other pieces of legislation that surround and govern the Bill.

We are able to have this debate because of the twilight struggle — for want of a better term — during those years when members of the SDLP and other parties on the Policing Board and in the district policing partnerships made their choices about policing. Nationalists would be opposing the devolution of justice and policing today, were it not for the work that was done and for the heavy lifting and big issues that were dealt with in the years up to 2007, before other parties joined the Policing Board.

There is an utter contradiction in what Mr O’Dowd has outlined. He rightly suggests to me and to everybody else that we should work to avoid a default situation in 2012. However, who endorsed the dissolution of the Ministry in 2012? Which party argued and supported that provision? It was Mr O’Dowd’s party. In order to get out of the hole into which it dug itself and the dead end that it faced when it was outmanoeuvred and out-thought by the First Minister on the need for cross-community support at all times for all times, Sinn Féin, in its desperation, signed up to, endorsed, supported and, no doubt, negotiated for, a sunset clause for the dissolution of the justice Ministry in 2012. Sinn Féin need not argue with us about the obligation to get new arrangements in place by 2012 and berate us for saying that there might not be new arrangements by then, when it was the architect of that political dead end. It was Sinn Féin who worked with others to put into law the issue that amendment No 2 deals with.

Martina Anderson (Sinn Féin, Foyle)

I am confused. Will the Member clarify whether he and his party are against the principle of sunset clauses? The SDLP claims credit for securing a sunset clause in the St Andrews Agreement. I want some clarity on whether the SDLP is against the principle of establishing a sunset clause.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

I ask the Member to bear with me, because I will give her absolute reassurance. I intend to read into the record the pedigree of the sunset clause that Sinn Féin endorsed and the SDLP’s views on sunset clauses, later in my contribution. I will come to that when I go further into amendment No 2 and to amendment No 3.

Under the legislation as drafted, the Department will dissolve. Through amendment No 2, we are saying that, given the grave risks that will arise in that regard, an obligation on the First Minister and the deputy First Minister to report to the Assembly on certain matters will get to the heart of what will happen in 2012, legislate against worst practice and avoid excess. Amendment No 2 calls on the First Minister and the deputy First Minister to do that.

I will go through amendment No 2 in some detail, because it needs to be understood. Sinn Féin and the DUP’s view is that once the Ministry is dissolved, there will be a vacuum and, in the absence of political agreement, nothing will be able to be done about it.

The SDLP’s essential point is that Westminster, sometimes referred to as “the mother of all Parliaments”, with its knowledge of drafting Bills and legislating for certainty, does not legislate for a vacuum. Contrary to what departmental officials and the First Minister said in Committee and in the Chamber, the SDLP believes that, in the event of the dissolution of the Department in May 2012, even though the sunset clause will kick in, there will be provision in legislation, by design or by default, for what happens next. Given all the toing and froing and the merry-go-round in respect of the devolution of justice and policing, we deserve to know, and the public needs certainty about, what will happen in those circumstances in 2012, namely in the absence of the political agreement that Mr O’Dowd rightly encourages us all to meet.

The SDLP believes that a sunset clause would not dissolve the Department; instead, the Secretary of State would intervene, and I will explain why. The amendment requires the First Minister and the deputy First Minister at a certain time, which I will come to shortly, to come to the Chamber to fulfil a number of reporting functions, including informing us of the circumstances that will arise after May 2012. That is the SDLP’s argument for what will happen in 2012, and why there is such an urgent obligation on the First Minister and the deputy First Minister to make that report to the Assembly.

Under the Northern Ireland Act 2009, which is the relevant Westminster legislation, the Department will automatically be dissolved on 1 May 2012, unless the Assembly — this goes back to Mr O’Dowd’s point — votes by cross-community support before 1 May 2012 to keep it. Alternatively, the Northern Ireland Act 2009 provides for another Act of the Assembly to provide for the justice Department to continue after 1 May 2012, provided that that Act uses a specific model, and it goes on to outline two models under the 2009 Act or under another authority. However, the critical point is that if no second Act is passed or if no cross-community vote is made in 2012, the Department will be dissolved, even though, as Mr O’Dowd indicated, Mr Ford would remain in post.

The dissolution of the Department would mean that the civil servants who are responsible for the justice system, including all those in next-step agencies, could not act as such. That includes the Prison Service, with obvious startling consequences. All of that is explained in paragraph 8 of schedule 1 to the Northern Ireland Act 2009. However, the critical point is that, owing to the extraordinary if not dangerous implications of the dissolution of the Department, we believe that that Act also provides for fallback arrangements, contrary to what the First Minister and the deputy First Minister said in their letter of 18 November 2009 to the Assembly and Executive Review Committee, which explicitly stated that there would be no fallback arrangements.

To avoid the total crash of dissolving the Department and all the consequences for the Department and the next-step agencies, paragraph 5(2)(b) of schedule 1 to the 2009 Act states:

“they are not to apply at all if an Order in Council has been made under section 21A(7C) of the 1998 Act.”

That provision in the 1998 Act was inserted as a result of the Justice and Security (Northern Ireland) Act 2007, which, along with other provisions, allows the Secretary of State to impose the model for the devolution of justice, namely the appointment of a senior and a junior justice Minister, and that is what we believe will happen. Therefore, contrary to all the reassurances that the Department will be dissolved and that no Minister will be in place in May 2012, the fallback arrangements will be that, under the 2009 Act, the First Minister and the deputy First Minister will appoint a senior and a junior justice Minister by cross-community vote.

I will return to the relevance of that to the proposed clause 2A. We are calling on the First Minister and deputy First Minister to come to the House within seven days of the commencement of the section and outline, orally and in writing, the functions that the Department is to exercise. That is important as a matter of principle. After all the debate and discussion about the devolution of policing and justice, it seems to us appropriate and relevant that the First Minister and deputy First Minister should come to the Floor of the House at that stage and explain in full detail what the full functions of the Department of justice will be when it is established.

The First Minister and deputy First Minister should explain to the House — if our analysis is correct about what happens in 2012 — what happens, under the relevant legislation, when dissolution arises, to all the work and functions of the Department of justice. At that stage, it will be left in a vacuum, without appropriate legal authority, and with a Minister without a Department. They should go further and explain that — sorry, I have lost my thought — as the proposed clauses 2C and 2D explain.

The real importance of our amendments is not just in relation to clause 2. The cutting edge of amendment Nos 1, 2, 3 and 4 is amendment No 3. I am sure that the deputy First Minister and others appreciate that. We are saying that there should be consequences if the report from the First Minister and deputy First Minister to the House is not tabled, or if certain actions are not taken by the Assembly arising from that clause. I will explain what all that means.

The new clause 2B does the important work. It provides that clause 2 of the Bill — which triggers the Northern Ireland Act 2009, and sets the clock on the May 2012 deadline — will be repealed if the First Minister and deputy First Minister do not make the report within seven days. It also provides that clause 2 will be repealed if the Assembly does not, within a further seven days, approve the triggering of the 2009 Act. Clause 3 provides for commencement, which I will speak about later.

The importance of that is as follows. The First Minister and deputy First Minister should come to the House and explain what they believe will happen in 2012. As I have said, we consider the consequences of dissolution to be grave, if not acute. We are suggesting that, in the event that the First Minister and deputy First Minister do not come to the House within seven days, as provided for in the amendment, the allocation of the justice Minister falls back to the provisions of the Northern Ireland Act 1998 and to the d’Hondt provisions.

We go further and propose that, in the event that the Assembly does not endorse the arrangements and the report given to the Assembly by the First Minister and deputy First Minister within seven days, including the consequences of dissolution in May 2012, the allocation of the justice Minister should be governed by the d’Hondt provisions of the Northern Ireland Act 1998.

We are giving responsibility, ownership and authority to this Assembly to make the judgment call that, if the consequences of dissolution in May 2012 are so severe and grave, and the people of Northern Ireland would not tolerate a situation where the justice Department did not exist — with all the consequences for the justice services and the people in the North — this Assembly should have the ability to say no.

In those circumstances, the Assembly should be able to say that those consequences are of such gravity that it would rather choose to go back to the d’Hondt model for the allocation of the justice Ministry than for the provisions that are outlined in clause 2. That is the essential political argument, and that is the choice that the Assembly must make.

If our argument about what will happen in 2012 is correct, the Assembly should caution and warn itself, and, in doing so, it should call on the First Minister and deputy First Minister to explain orally and in writing to the Assembly the consequences of that. The Assembly should call on the First Minister and deputy First Minister to do that within a month from today, in December 2009, which is when clause 3, as amended, would go live. If those consequences are so grave and acute, a different direction should be taken.

It may be, as we anticipate, that the First Minister and deputy First Minister will not make any oral or written report on the consequences of what will happen in May 2012. If that were to happen, so be it; d’Hondt would prevail. However, if that provision were accepted and the First Minister and deputy First Minister were to make that report, it would be up to the Assembly to endorse it. If the Assembly were to feel that the consequences of dissolution in May 2012 were too grave and severe, it would not choose to endorse the report of the First Minister and deputy First Minister. In that event, the provisions of d’Hondt would prevail. That is the consequence of proposed new clauses 2A, 2B and 2C.

That is what we are asking as we approach the lunch break. [Interruption.]

Francie Molloy (Sinn Féin, Mid Ulster)

Order. The Member has the Floor.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

I hear jeering from my right and laughter from my left, and neither is appropriate.

The essential political issue of this week, recent weeks and, no doubt, coming weeks has been the nature and character of the devolution of justice and policing. We have struggled for a long time to bring about the devolution of justice and policing, and having those powers will be important for the community to deal with crime, the fear of crime and the unresolved matters of the Public Prosecution Service and to bring about the further reform of the Prison Service. If we believe that having custody and stewardship of those issues, responsibility to legislate and policy that better informs how society develops in future, it is reckless and naive, 30 months away from May 2012, for the Assembly not to have its eyes wide open. Given our experience of the past 30 months, we must go into the next 30 months fully aware and informed of what the consequences of what we are doing might be. That is the significance of a report from the First Minister and deputy First Minister going to the Floor of the Assembly, as is proposed in amendment No 2. It would compel the First Minister and deputy First Minister to inform the House of their best advice on what would happen in 2012.

If we are serious about being legislators, and if we value the devolution of justice and policing so much, we owe it to ourselves, never mind our constituents and the wider public in Northern Ireland, to ensure that there is no doubt about what will happen in 2012. There must be certainty so that people can go forward confidently and know that what I trust will happen in the next number of weeks will not be reopened and revisited in May 2012.

Do we not owe it to ourselves and to all the people who have observed, over the past weeks and months, the discussion on devolution of policing and justice to have certainty about what will happen every day between now and 30 months’ time, and, crucially, what will happen on 1 May 2012? Amendment No 2 argues for that certainty. The Assembly must consider it.

We cannot fly blindly. We must go forward with our eyes wide open. There must be legal certainty. We cannot jeopardise the hard-won gains of the devolution of justice powers, if that transpires over the next 30 months, by allowing it to disappear in a puff of smoke. The essence of the amendment, and its political and legal significance, is its ability to build community confidence.

The First Minister has spoken about community confidence eloquently and at length. However, I have certain differences with him in that regard. How will it affect community confidence if the Assembly cannot say with certainty what will happen in May 2012, and if it tells the Northern Ireland public that the Department of justice will be dissolved? How does that add one iota of confidence about the administration of policing and justice, and about the certainty and stability of those political arrangements until May 2012, never mind in and around that date? I suggest that it does not.

Mr Deputy Speaker, I will be guided by you on whether I can continue to speak. I still have to speak to other amendments in the group.

Francie Molloy (Sinn Féin, Mid Ulster)

We can resume the debate after lunch. The Business Committee has arranged to meet upon the lunchtime suspension. I, therefore, propose, by leave of the Assembly, to suspend the sitting until 2.00 pm, when Mr Attwood will continue.

The sitting was suspended at 12.30 pm.

On resuming (Mr Speaker in the Chair) —

Alex Attwood (Social Democratic and Labour Party, Belfast West)

I have some concluding remarks to make on amendment Nos 1, 2, 3 and 4. Proposed new clause 2B simply legislates for the grave, perhaps catastrophic, circumstances that may arise in May 2012. I understand that some Members may not want to talk about that, because they hope that, given the potential for political negotiations between now and then, such circumstances will not arise. Nonetheless, such a grave situation could arise.

Mindful of that backdrop to the debate, amendment No 3 would create a responsibility, initially for the First Minister and the deputy First Minister, and subsequently for the Assembly, to manage that situation. Under amendment No 3, if the First Minister and the deputy First Minister were minded not to table a report, as required by amendment No 2 — perhaps in recognition of a situation that may arise in 2012 — d’Hondt would be run. Alternatively, the First Minister and the deputy First Minister may be minded to table a report orally and in writing, but the Assembly may choose not to endorse it within seven days because of concern about what the First Minister and the deputy First Minister were advising it to do. In such circumstances, authority would pass to the Assembly, clause 2 would be repealed, and d’Hondt would apply.

I appreciate that other parties have chosen not to use d’Hondt to allocate the Department of justice. However, they would share an equal responsibility with all other parties and Members to make a judgement about the circumstances that may, in the absence of political agreement, arise in 2012 and assess whether not using d’Hondt is a credible position.

Before dealing with whether clause 2 should stand part of the Bill, I will address amendment No 4, which outlines the time frame for amendment Nos 1, 2 and 3. Those three amendments have such substance and weight that the Bill must show how they would be managed should they become law. Amendment No 4 proposes a new clause, 2C, which is crucial to the eventual appointment of a Minister. Circumstances may arise that may govern the timing of the amendments.

The day after Royal Assent is granted — whenever that may be after the likely agreement to this legislation — time will run for the First Minister and deputy First Minister to report to the Assembly, and seven days thereafter, time will run for the Assembly to either endorse or not endorse that report. The interpretation clause in amendment No 4 outlines the relevant timing features.

The amendments will mean that the day following the day that the report is due is the designated date for the appointment of the Minister. In the event that no report is made, that appointment will not happen. The report may be made but not adopted, or the report may be made and adopted by resolution of the Assembly, the day after which the Department will go live. That is how amendment No 4 relates to proposed new clauses 2A and 2B.

Ultimately, a political judgement must be made in respect of the four amendments. Members must make one of two choices in respect of those amendments. Members may concur that doubts may, even residually, exist about the situation that might arise in 2012, because the DUP and Sinn Féin believe, on balance if not more than that, that there will be a vacuum if the Department is dissolved in 2012. During today’s debate and debates at the Bill’s Second Stage and Committee Stage, I have said that there is some doubt about what will or will not happen in 2012. Even the First Minister and departmental officials are beginning to acknowledge that. Indeed, departmental officials said — it is recorded in the Hansard report — that, if there were a legal issue about the interpretation of what will happen in 2012, that would be a matter for the courts.

If, after all the sound and fury about the nature, character and timing of the devolution of justice, we are left a situation in which we have to rely on the courts to decide what should happen in May 2012, we will not have served the overall project of the devolution of justice, nor will we have achieved its potential for the people of Northern Ireland.

Officials are beginning to acknowledge that there may be a need for legal interpretation by the courts. In fact, departmental officials told the Committee that they had spoken to people with knowledge of the legislation that was tabled and passed by the Westminster Parliament in 2009 and they indicated that it was not the intention of the legislation to create a fallback position in 2012. Consequently, we cannot rule out the possible need for legal interpretation. Given that the First Minister has said that this matter may be open to interpretation and given that departmental officials, acting on behalf of the First Minister and deputy First Minister, advised the OFMDFM Committee that this might be a matter for the law and that it was not the intention of the original legislation to create a fallback in 2012, Members should consider whether the Bill, as currently drafted, provides certainty about what will happen in 2012 and will allow us to legislate in a way that satisfies the needs, concerns and fears of the communities that we represent.

I suggest to all parties — perhaps more to one or two parties than to others — that they should consider whether this is a better model for taking the matter forward in order to satisfy themselves and the wider community about the situation that might arise in 2012. Essentially, that is the political choice. However, that is the imperative choice that we, as a legislature, have to make when we vote on the amendments.

If it is the view of the First Minister and deputy First Minister and their respective parties that there is certainty around the devolution of policing and justice, the new clause proposed by amendment No 2 is a defence of their position, not a sword to attack it. Even the First Minister and deputy First Minister may feel that they should be creating that level of certainty on those matters for their purposes and for the purposes of the wider community.

Alternatively, it may be that the First Minister and deputy First Minister are minded not to go in that direction. In that case, some people may acknowledge and accept, deep in the recesses of their minds, that there is a fallback position. Although one party may be coy about acknowledging that, another party may be worried on the basis that it has relied upon a sunset provision and there will be no fallback position in May 2012. Those are the options that all parties must choose between. When it comes to the vote, I urge Members to make the choice that the SDLP is putting forward.

The SDLP opposes clause 2 standing part of the Bill. Amendment No 6, which will be debated subsequently with amendment No 5, under timing issues, relates to clause 2.

Throughout the consideration of the devolution of policing and justice on the Floor of the House, in Committee and elsewhere, the SDLP has argued for a position of principle. Given what I have just said about the other amendments, about the degree of uncertainty, about what could happen in 2012 and about the potential chaos that might arise in those circumstances, is it not a better and sounder position — independent of our views around the form and nature of the devolution of policing and justice powers and who can or cannot become a justice Minister — to go back to the d’Hondt provisions? Even at such a late stage, we urge people to consider that as the position of principle and certainty. That is what our opposition to clause 2 does. If we reject the clause, the provisions of the various pieces of legislation from 2006, 2007 and 2009 will not prevail. Further, the Northern Ireland Act 1998 and the d’Hondt provisions of section 18 therein will prevail. Given what we said about amendment Nos 1 to 4, that is a better position and one of principle and strength. That is a better basis on which to move forward with the devolution of policing and justice powers, avoiding the pitfalls, avoiding a rerun of negotiations and avoiding the risk of what could happen in 2012.

The DUP is using clause 2 as a test of public confidence. I am not going to tell the DUP or any other unionist party its business. I accept that the DUP should know, much better than the likes of me, the nature and the mind of unionism. However, when it comes to clause 2 and the public declarations that have been made about who would or would not be acceptable, according to party affiliation, as justice Minister, I have two things to say to Sinn Féin and the DUP.

We understand and acknowledge why some Members from some parties would find it difficult to endorse a candidate from another party. We all carry baggage — emotions and fears from the past — and I will not diminish or deny that fact. The SDLP held an event in west Belfast last night that was relevant to the past. Alan McBride spoke at it. One cannot listen to him without realising how he learned from his pain and gained wisdom on how to engage with other communities, even though he still finds it difficult to have sympathy for some of the people who may have been involved in the circumstances that led to his wife’s death. Like him, none of us should deny or diminish the fact that people will have doubts, hesitations, concerns or even fears about who may become justice Minister.

The SDLP has reached a point in its political development at which it can see more than the principle of d’Hondt governing what party receives the ministerial portfolio. The SDLP has such levels of confidence that, whatever party takes up the justice portfolio from those entitled to it under the principles of democratic inclusion, it believes that the Minister will be competent and balanced. There are plenty of checks and balances in the Assembly and the Executive. At this morning’s Assembly and Executive Review Committee meeting — I am not talking out of turn by saying this — the First Minister mentioned some of the additional checks and balances that might be needed to govern how a Minister of justice would conduct his or her affairs. There may be a point in that.

Alex Maskey (Sinn Féin, Belfast South)

On a point of order, Mr Speaker. I remind the Member that the meeting to which he referred was a private meeting. I seek your guidance on that, Mr Speaker.

William Hay (Speaker, Foyle)

It is important that, as far as possible, private Committee meetings on ongoing matters stay private.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

I did not breach that convention too badly, given that the Assembly and Executive Review Committee has spent quite some time discussing the entitlements of a justice Minister and how some difficult, sensitive and urgent matters might be handled. That is germane to the business of the Committee, and my passing reference, in the context of this morning’s meeting, did not stray too far from the agreed confi­dentiality. I accept your ruling, Mr Speaker, but I did not offend too badly.

The SDLP has reached a point in its development at which, regardless of personal views or political reservations, it accepts that whoever becomes justice Minister will be competent and balanced. Regardless of doubts in parties, we like to think that the wider community, including our community, has reached that point. That is why we support the principle of d’Hondt and why we support the principle that a person from any party, regardless of any reservations, is entitled to be put forward for the post. However, mindful of that wider context and principle, we find it very difficult to accept that the First Minister can declare that an SDLP candidate for justice Minister would not be acceptable. Some people may regard someone from a certain background as an unacceptable candidate for justice Minister. However, over and above the fact that the eleventh Ministry should, under the rules of democratic inclusion, fall to the SDLP and although we resent the breaching of that principle in clause 2, we do not believe that broad swathes of unionism continue to harbour such doubts and fear about an SDLP candidate for justice Minister.

What was the SDLP doing during all its years in the district policing partnerships? We were demonstrating, in a way that we had not fully done before, our view on the future and nature of policing and expressing our support for and confidence in policing. The SDLP took risks for policing, as it had previously taken risks for peace. How has that contribution over the past seven or eight years resulted in a situation in which a member of our party is disqualified from the role of justice Minister? The SDLP is, in so many ways, a party with integrity and principles and one that has stretched itself. Given that, why has one party in the Chamber said that, under clause 2 of the Bill, my party will not qualify to be considered favourably for the justice Ministry?

My offence at clause 2 does not arise solely from the fact that the Good Friday Agreement has been rewritten. Nor does it simply arise because d’Hondt has been abandoned, because democratic inclusion has been jettisoned or because guarantees on how we conduct our political affairs have been sidelined. I am concerned at how casually and willingly those matters seem to have been signed off by the party to my right.

John O'Dowd (Sinn Féin, Upper Bann)

Will the Member give way?

Alex Attwood (Social Democratic and Labour Party, Belfast West)

I will give way in a second.

That approach leads to a situation where a party, under democratic inclusion, is denied its entitlement to a Ministry in the Government, whatever that Ministry may be. My party has tried to behave responsibly; nobody can deny that, regardless of our differences on policing and justice matters or our appetite for reform and change, which may be greater than others’. I do not understand how the First Minister can say that because Sinn Féin will stop a unionist gaining the justice Ministry, the DUP must stop a nationalist doing so. Would it not be a measure and recognition of how far the nationalist community has travelled in the past 10 years, having already travelled a long road in preceding decades, for the First Minister to make a bigger, braver and more courageous statement, rather than using clause 2 of the Bill to say, “Because we will not get our one, you will not get yours”? Is that the level of political debate, discourse and insight that we are at?

Those are some broader reasons why we will oppose the Question that clause 2 stand part of the Bill. We recognise the areas in which the First Minister has stretched himself and demonstrated good leadership and good authority. We do not like the terms of the devolution of justice; we believe that they are substan­tially, if not exclusively, in the image of the DUP’s needs. We again warn the British Government that unpicking the institutions and elements that have created cohesion and stability in our society — the Good Friday Agreement provisions, the parades provisions and the Patten provisions — as part of a broader approach and strategy is not the way to deepen stability. However, that is what clause 2 does.

The First Minister may be looking to the unionist community and perhaps particular elements of it to decide what to do next. The bravest step that he could take would be to say that we need devolution of justice now, because it will deepen confidence in our institutions and deal with the issues that affect so many unionist and nationalist communities that are at risk. He should go further and define the new order of things and differentiate it from the fog that surrounded the previous months and weeks and all the difficulties with a shared future, the workings of the North/South institutions and other unresolved issues in government. The DUP should say that it will clear all that fog. It should also say that nationalism has an entitlement under the provisions of democratic inclusion. Further­more, if that party insists on the cross-community support mechanism for the selection of a justice Minister, the SDLP candidate should be endorsed.

Mr Deputy Speaker, I thank you, the Speaker and Members for your indulgence today and over the past while.

Danny Kennedy (UUP, Newry and Armagh)

Although I am the Chairperson of the Committee for the Office of the First Minister and deputy First Minister, which is the Department that has responsibility for the Bill, I am also a member of the Assembly and Executive Review Committee, and I intend to make some remarks in a party political capacity.

I will refer to the first group of amendments and mention briefly the Committee for the Office of the First Minister and deputy First Minister’s scrutiny of the Bill. The Committee received a pre-introductory briefing from departmental officials on 9 September 2009. A public notice was placed in the ‘Belfast Telegraph’, ‘The Irish News’ and the ‘News Letter’ on 18 September 2009 seeking written evidence on the Bill.

The Bill was referred to the Committee on completion of its Second Stage on 22 September 2009, and, in response to its call for evidence, the Committee received written submissions from the Assembly and Executive Review Committee and a late submission from Mr Jim Allister QC, leader of Traditional Unionist Voice. The Committee considered the Bill and the submission from the Assembly and Executive Review Committee on 7 October 2009. We discussed and noted the late written submission from Mr Jim Allister QC on 14 October 2009 and agreed to include that submission in the Committee’s report.

The Committee undertook its formal clause-by-clause scrutiny of the Bill on 14 October 2009. I will now relate the outcome of that scrutiny. The Committee agreed that it was content with clause 1 and the relevant schedule as drafted. The Committee considered clause 2, and Mr Elliott proposed that the Committee seek advice from the Assembly’s Legal Services about the potential consequences of the sunset clause. The Committee divided on Mr Elliott’s proposal, which fell. Mr Attwood proposed to leave out clause 2; the Committee divided on Mr Attwood’s proposal, which also fell. The Question was put that the Committee was content with clause 2 as drafted; the Committee divided on the Question, which was agreed.

The Committee considered clause 3, and Mr Attwood proposed an amendment to clause 3(2) to replace the words:

“such day or days as the First Minister and deputy First Minister, acting jointly, may by order appoint.”

with the date “7 December 2009.” The Committee divided on the proposed amendment, which fell. The Question was put that the Committee was content with clause 3 as drafted; the Committee divided on the Question, which was agreed.

That is the entirely factual description of the positions that the Committee for the Office of the First Minister and deputy First Minister took on the Bill. I will now make some brief remarks — they will be substantially briefer than the previous contribution — on behalf of the Ulster Unionist Party.

There is an ‘Alice in Wonderland’ feel to aspects of the proceedings today. The amendments in group 1 concern the appointment of a justice Minister, a role known in this House, in past decades, as the Minister of Home Affairs. A new process for the appointment of such a Minister has now been devised by the DUP and Sinn Féin. The political circumstances surrounding this afternoon’s debates are well known, and I suspect that, although none of us are prophets or sons of prophets, we have a sense of what the various outcomes will be.

The Northern Ireland Office is busily talking to party leaders and various representatives, saying that the Assembly must urgently agree to the Bill because policing and justice powers must be devolved quickly. In remarks made from the United States, the First Minister said that the confidence now exists to devolve policing and justice. The Minister of Finance and Personnel has declared that the devolution of policing and justice should happen sooner rather than later, and the former junior Minister Mr Donaldson said yesterday that the retention of the full-time Reserve was a deal-breaker. He said that policing and justice would not be devolved without that retention. Such words imply that the context that we are in is one in which the DUP and Sinn Féin are talking about the possible imminent devolution of policing and justice. I see that you are taking advice, Mr Speaker.

The leader of Sinn Féin, Mr Adams, has said that the British Government and the DUP must now implement their commitments under the St Andrews Agreement to speedily devolve policing and justice powers. Despite that, during the Bill’s Second Stage, the DUP’s Rev Dr William McCrea — I am sorry that he is not in his place — informed us that this was make believe. He said that we should all vote for the Bill, because:

“The Bill does not say that the devolution of policing and justice powers is imminent.”

“The Bill does not do that.” — [Official Report, Vol 43, No 4, p206, col 2].

“The Bill does not hasten by one hour the day of devolution of justice and policing powers. — [Official Report, Vol 43, No 4, p207, col 1].

Where does that leave the amendments in group 1? Do they address a situation that will be faced by the Assembly in the immediate future, or is this an abstract debate over constitutional niceties that are not to be faced any time soon? We need an answer to that question if Members are to have an informed debate on the tabled amendments. I am prepared for an intervention from the deputy First Minister, who will respond to the debate, or the First Minister, who is no longer in his place, to clarify the position that they both hold.

I believe in devolution, and I come from a party that believes in devolution. We are more than happy to contemplate the return of policing and justice powers to this House. After all, the Ulster Unionist Party exercised such powers in this House for a considerable period. I want the process of devolution of those powers to be done properly. Those powers are too fundamental to the well-being and security of the entire community to be shoved through without consensus.

The division at Second Stage showed the lack of consensus on the mechanisms proposed in the Bill. The amendments in group 1, tabled by the SDLP, also emphasise that lack of agreement on the mechanics for the appointment of a justice Minister. A particularly important provision of the new clause 2A, as proposed in amendment No 2, is the responsibility that it would place on the First Minister and deputy First Minister to explain to the House the consequences of the sunset clause.

Even if the parties of the First Minister and the deputy First Minister vote down the proposed new clause 2A, surely they have a responsibility to explain to the House what will happen if the Bill is passed without amendment, and the sunset clause is invoked on 1 May 2012. The list of matters referred to in proposed new clause 2A(b) are not prescriptive. The clause refers to:

“the consequences of such dissolution for the exercise of the functions that the Department of Justice is to exercise”.

The deputy First Minister must explain to the House what those consequences will be.

Northern Ireland has been here before. In 1972, circumstances undermined the stability and the integrity of the Northern Ireland Parliament, and that had a grievous impact on the stability of our society. Therefore, the following question is legitimate and necessary: what will happen if the sunset clause is invoked on 1 May 2012? I cannot imagine how Members can vote against amendment No 2 without having been given a satisfactory answer to that question.

Amendment No 2 also makes provision for a Minister of justice to be appointed under the d’Hondt system if the report of the First Minister and deputy First Minister proposed by the amendment is not endorsed by the Assembly. The d’Hondt system should be rerun in full to appoint a Minister of justice. The Minister of justice should be appointed on the same basis as his or her ministerial colleagues. If the community confidence exists to devolve policing and justice, that should be the manner in which a Minister is appointed.

My colleagues and I will join the SDLP to vote against the DUP/Sinn Féin arrangement to appoint a Minister of justice outside the normal procedures of the House. The DUP/Sinn Féin arrangement to appoint, potentially, a puppet Minister demeans the administration of justice and the significance of policing. Only yesterday, in ‘The Irish News’, the Alliance Party’s Dr Farry stated that a Minister of justice who had been appointed according to the unamended provisions of the Bill would have little integrity or authority. He said:

“As things stand the legislation suggests that … under a political whim the DUP and SF could reach a conclusion they want to remove a minister from office. If a Minister is looking over a shoulder then their ability to take those decisions is going to be significantly impaired.”

Stephen Farry (Alliance, North Down)

We all agree that a Minister of justice must not be a puppet Minister. In the light of the need to avoid that situation, will Mr Kennedy give an assurance that his party is willing to engage with all the other parties to agree a policy programme in advance of the devolution of policing and justice, perhaps as an addendum to the Programme for Government? That would ensure that a Minister of justice can deliver a programme on behalf of the people of Northern Ireland and the House.

Danny Kennedy (UUP, Newry and Armagh)

A considerable flaw in the process has been the lack of consultation and meaningful dialogue with other parties in the House and in the Executive. Clear lessons should be learned from the reasons why we are unhappy with the provisions of the legislation and why we are cynical and sceptical about engagement with the DUP and Sinn Féin. Like other parties, we are ready to engage. However, that engagement must be serious and go even further than what Dr Farry outlined. Engagement must address how the Executive behave in looking after the work of the Assembly and the affairs of the people of Northern Ireland. A fundamental change must be made to the dysfunctional way in which Executive business is carried out in this place.

David Ford (Alliance, South Antrim)

I appreciate the Member giving way. Given that he places so much emphasis on the importance of parties discussing these various issues, will he, as deputy leader of the Ulster Unionist Party, encourage his party leader to respond to the letter that I wrote in August?

Danny Kennedy (UUP, Newry and Armagh)

That is a very helpful suggestion, and I will raise the matter with Sir Reg Empey. I have no doubt that he will give it urgent consideration. I am not sure how that letter was signed, perhaps as the possible justice Minister designate or something like that, but we will certainly —

Naomi Long (Alliance, Belfast East)

He signed it as the leader of the Alliance Party.

Danny Kennedy (UUP, Newry and Armagh)

Well, we will consider it and provide a full, detailed reply.

In general, the Ulster Unionist Party supports what the SDLP is attempting to do today with the amendments. However, that support is qualified. Although we seek the clarity that the SDLP seeks, and we want the d’Hondt system to be run in full sequence, we will not be bound by any artificial time frame for the devolution of policing and justice. Therefore, we cannot and will not support any amendments that place a specific deadline or timetable on events.

My party colleagues will address other matters associated with the amendments in this group. At this stage, I signify that the Ulster Unionist Party is minded to support the opposition to clause 2 and to support amendment No 2.

George Robinson (DUP, East Londonderry)

I will address the specific point of the election of the Minister for the new Department of justice. The topic has produced much discussion, but it is a relatively simple concept for Members to understand.

The Bill is straightforward. Clause 2 sets out a process for the appointment of a Minister of justice by vote of the Assembly. I point out that the process of appointing a justice Minister, whenever that occurs, will be an inclusive, full-blown Assembly process that ensures every Member’s involvement. The proposed method is not unfamiliar to Members. Indeed, it is used for critical votes in the Assembly; and the Speaker is elected according to the method. Therefore, d’Hondt is not the only process used by the Assembly. Surely, the appointment of a policing and justice Minister is so important that it must have cross-community support. We will then have a Minister who has support that is drawn from both sections of the community, which is essential.

The position is of great importance and sensitivity. Therefore, every possible means to demonstrate cross-party support and to ensure that the person who is appointed has the confidence of the widespread community must be taken. The system that I want to see will ensure that both sections of our community support the new justice Minister. The proposed method of electing the new Minister requires not only a majority of Members of the Assembly to endorse the appointment; it must be further endorsed by a majority of nationalist Members and a majority of unionist Members.

That approach sends out a strong message because a cross-community vote demonstrates that all sections of the House have given their agreement. Unanimous support from the Chamber also sends out an important signal of legitimacy for any Minister. Some Members have complained, today and previously, about clause 2, but their argument is flawed. The arrangements in the Bill for appointing a Minister of justice are clearly different from those that are used to appoint other Executive Ministers. Members who complain must realise that what was negotiated as part of the Belfast Agreement was rewritten in the St Andrews Agreement. That ensured that the DUP had a veto over when the devolution of policing and justice powers would take place. It is obvious that that is far from agreed at present. The party also ensured a veto over who the Minister would be. Sinn Féin conceded that veto to the DUP.

With those points in mind, I support the Bill.

Alex Maskey (Sinn Féin, Belfast South)

Go raibh maith agat, a Cheann Comhairle. I understand that this debate may be suspended at 3.00 pm. I am in your hands about whether you want me to continue or you wish to break.

William Hay (Speaker, Foyle)

We will run the debate very close to 3.00 pm. I will then interrupt you and allow you to finish after Question Time.

Alex Maskey (Sinn Féin, Belfast South)

Thank you, Mr Speaker. I am sure that you will not be the only one to interrupt me this afternoon.

What we have heard so far amounts to an attempt to rerun debates that we have had in the House recently and, periodically, on the airwaves. Absolutely nothing additional has been contributed to the debate, so we have learned nothing new. I note that people spend their time saying that what we are doing is wrong, and why we should not be doing it, but nobody ever comes up with any alternative. That has been made clear and confirmed by the previous contributors, including Danny Kennedy.

The SDLP and the UUP often operate in the Assembly by presenting themselves almost as leaders of the opposition. However, on the very important issue of timing, which is crucial to the SDLP amendments, it is clear that those two parties cannot agree on an essential element of the transfer of policing and justice powers. At least one of those parties, which keep telling everyone what we are doing wrong, should let the public know its alternative. Those parties need not worry about informing the House, because they have not done so yet, but they should tell the public how they might secure the transfer of policing and justice powers, which they say that they want to achieve.

At no time during the lifetime of the first Executive, when the Ulster Unionist Party and the SDLP occupied the positions of First Minister and deputy First Minister, did they propose the establishment of a Department of justice, or anything like it. The issue did not arise then, so parties that claim that they have been pursuing the issue for years have never demonstrated their intention by putting forward a proposal. Furthermore, although the party that tabled the amendments tells us that it wants to behave responsibly, it has taken every opportunity to denounce the Bill and vote against its provisions. That, as we have witnessed, extends to the party’s participation at Westminster, where its Members variously voted for, abstained or did not turn up for votes on a policing Bill. On one occasion, the SDLP voted for the Bill, on others it voted against or abstained. I am not saying whether the party was right or wrong in any of those actions; I am merely pointing out that there are many contradictions in the position of the party that tabled the amendments.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Member refers to votes against and for the policing Bill at Westminster. The vote cast for the policing Bill by the SDLP at Westminster was at Second Reading, when the only Members who voted against were those who opposed the Patten plan. As a party that backed the Patten plan, which required legislation, the SDLP supported the Bill at Second Reading. We then tabled a series of amendments and opposed the Government’s later version of the Bill because it did not match up with the Patten recomm­endations. That is how legislation is conducted, and the Member’s party does exactly the same in this House.

Alex Maskey (Sinn Féin, Belfast South)

The Member should not get too excited; it is a bit early in the debate to be getting annoyed. I made the point that I was not contesting whether the decision to vote for, against or abstain was right. During the legislative process, people have the right to take various positions as they see fit. I merely point out that, at the time, there were fundamental problems in getting that Bill passed. It took a lot of hard work afterwards, and our party had to fight an almost lone battle to rectify the Bill.

Notwithstanding all of that, we are here, in 2009, essentially to respond to Members who have argued that they have done all the work and carried the heavy burden for years by themselves. The point is that, when they had the opportunity, in the roles of First Minister and deputy First Minister, they never advocated the establishment of a Department of justice. As the old saying goes, talk is cheap, but it takes money to buy drink.

There were recurring themes in Mr Attwood’s contribution. The fact that Mr Attwood and his party are simply going round the houses — the long way round —on this matter was demonstrated this morning and this afternoon, when he took a long time to tell us how “on the one hand”, in what I thought was initially a negative tone in respect of the sunset clause, the First Minister and the deputy First Minister should “explain” and “come clean” about what will happen if we reach May 2012 without making provision for a Department of justice.

Mr Attwood contends, and his party colleagues often repeat, that, by design or default, alternative arrangements are in place and the sunset clause is meaningless. At the other end of the spectrum, Mr Attwood went on to say that our failure to make provision for 2012 and the fact that there is no fallback position means that we face grave and catastrophic consequences. He cannot have it both ways: either there is a fallback position, whether by design or default, or there is no provision for 2012.

I am sure that the First Minister and the deputy First Minister will deal with this point; but, certainly, from Sinn Féin’s point of view, the arrangements that OFMDFM has reached with Sinn Féin and the DUP thus far have resulted in the Bill, which is important, necessary and enabling legislation, being tabled. The essence of the Bill is that we have an arrangement that, although it may not be perfect, will facilitate the transfer of policing and justice powers, if and when we can agree a time frame for it to happen.

I have no hesitation in, or reservations about, saying that Sinn Féin has relentlessly pursued this matter. Why have the media and the airwaves been full of controversy in recent days? Why were Martin McGuinness and Peter Robinson with the British Prime Minister last Saturday? It is because we are relentlessly attempting to secure the establishment of a Department of justice, and we make no apologies for that pursuit. The fact that we do not have it yet is hardly breaking news; it is a work in progress, and everyone is aware that we are reaching a point at which there are difficulties beyond even policing and justice. However, that is a discussion for another day. I am merely making the point that we are relentlessly pursuing an agreed time frame in which to establish a Department of justice.

The Bill provides that, when we reach that point, the legislation that is required to establish the Department will be in place and, therefore, we will not face undue delays in having a Department with the appropriate policing and justice responsibilities that functions fully and benefits the interests of the wider public. The sunset clause is important and necessary, because it means that, once a Department is established, there will be an imperative on the parties, as my colleague John O’Dowd said, to learn from what I hope will be a positive experience, and that will enable us to agree a more permanent structure for the Department of justice by May 2012. Those discussions will then reach their own conclusions.

I look forward to the Department being established, and then we can live and learn lessons from our experiences as we work through to 2012. However, let me make it clear, there are no fallback arrangements for 2012, if the Assembly has not put in place or agreed any alternative measures. The British Government’s representative in Westminster, Paul Goggins, addressed that matter when responding to Mark Durkan in the debate to pass the relevant legislation. He stressed at length that, as far as the British Government are concerned, there is no fallback position and it is not their job to provide one.

We all know that the world will not end in May 2012, so something will have to happen. Sinn Féin is working on the basis that, if we can establish a Department, people will find it beneficial that locally elected representatives will, for the first time, be accountable for those crucial powers and functions. Having gained experience between the time when the Department is established and May 2012, we will be able to come to a rational, mature decision on how to proceed from that date.

Mr Speaker, were you about to intervene?

William Hay (Speaker, Foyle)

No. Carry on.

Alex Maskey (Sinn Féin, Belfast South)

Thank you. The purpose of the sunset clause is clear: to ensure that all our minds are concentrated before May 2012 so that we can take forward the work of an already transferred Department on a rational, sound and permanent basis. For my party, that implies that, in the wider scheme of things, the Department should be established under d’Hondt, and so on. The Bill provides for a temporary or interim arrangement among OFMDFM, Sinn Féin and the DUP. That the arrangement is temporary is demonstrated by the fact that, in May 2012, a sunset clause will kick in, and there is no fallback position. That stresses the need to agree a more permanent basis upon which the new Department of justice can proceed.

I turn to the amendments, which Sinn Féin opposes. A number of them are consequential amendments, and I do not intend to devote any time to those. The issue of a “designated day” shows that people are trying to set a time frame on the process. I have already referred to the fact that Sinn Féin and others are working to resolve the question of a time frame. No amendment or proposal made in this debate can compel any party that has not yet agreed to the transfer of powers to co-operate on that, particularly if it is the largest party in its respective designation. Those amendments are meaningless because they cannot compel anyone to fulfil the intention behind them.

I turn to the question of the d’Hondt process and what the SDLP regards as its entitlement. It argues that the Department of justice will be the eleventh Department and that because the SDLP comes next in the d’Hondt running order, the Department should fall automatically to that party. Mr Attwood referred to the rules of d’Hondt and the additional Department. However, there are no rules and no provisions for 11 Departments. We will have to create rules and provisions for an eleventh Department. To do that, d’Hondt must be run from one to 11. No one can seriously suggest —

Alex Maskey (Sinn Féin, Belfast South)

I have no difficulty with that. However, there are no rules under which that can be done at present, so we must agree them. I invite other parties, instead of telling us what we are doing wrong, to tell us how they would do it differently, and with whom. We have heard already from Mr Kennedy that the Ulster Unionist Party does not agree with the SDLP on the issue of timing.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Member suggests that there is no provision for more than 10 Departments. Under the Good Friday Agreement, the provision is that, if there are to be more than 10 Departments, the consent of the Secretary of State is required. Elsewhere in the agreement, it is clearly stated that government Departments in Northern Ireland must be headed by a Minister appointed through the d’Hondt system. That is what the agreement and the 1998 Act provide for. This Bill is a departure from that, and the Member is trying to create a fiction and a smokescreen to obscure that.

William Hay (Speaker, Foyle)

Order. I must interrupt the debate for Question Time, after which I will allow Mr Maskey to continue. The House may take its ease for a few moments.

The debate stood suspended.

Finance and Personnel

Declan O'Loan (Social Democratic and Labour Party, North Antrim)

On a point of order, Mr Speaker. I see no Minister here to take questions.

William Hay (Speaker, Foyle)

The Minister is in his place.

Fra McCann (Sinn Féin, Belfast West)

1. asked the Minister of Finance and Personnel if he has discussed within the Executive the credit unions’ proposal to open up discussions regarding the investing of their funds in social housing programmes. (AQO 348/10)

Sammy Wilson (DUP, East Antrim)

I am glad that at least you recognised that I was in the House, Mr Speaker. I know a good optician that Mr O’Loan can use so that he can see me in future. I do not think that I have been called the invisible Minister before; this is a first.

Housing policy is an issue for the Minister for Social Development, and I would expect her to raise any proposal for the funding of social housing by credit unions. I understand that she has already met the credit unions, but, to date, she has not made any approach to my Department about funding from that source.

Fra McCann (Sinn Féin, Belfast West)

Does the Minister agree that given the shortage of finance for the housing issue, and the lack of any strategy from the Minister for Social Development to deal with the problem, the financial resources held by credit unions could transform the social housing sector?

Sammy Wilson (DUP, East Antrim)

As I have already mentioned, this really is a matter for the Minister for Social Development. Housing associations can seek funding from whatever sources they wish; currently, approximately 67% of housing association funding for social housing comes from private sources. If the housing associations want to follow up on the possibility of funding from the credit unions, or any other financial institution, they are free to do so. Within certain rules, they are free to finance housing stock from that source.

Simon Hamilton (DUP, Strangford)

The Minister will recognise that the future financing of social housing in Northern Ireland is a big issue, and Mr McCann’s question, the Housing Council and the Northern Ireland Housing Commission have all talked about the issue. There are dozens of different ideas, many of which could ease pressure on the public purse. Does the Minister agree that to get a better assessment of the validity and feasibility of those ideas, a review of social housing in Northern Ireland — one which particularly examines placing social housing delivery on a firm foundation in difficult economic times — would be a good proposal?

Sammy Wilson (DUP, East Antrim)

I understand the importance of investment in social housing, particularly as private sector house building has taken a knock, and that has impacted on the construction industry. The social housing sector is important. However, any review of the finance or structure of social housing is ultimately the respons­ibility of the Minister for Social Development, and she should be the first port of call on that issue.

There have sometimes been difficulties with the Department for Social Development’s finances and looking at innovative ways of using finance. Therefore, my departmental officials would be more than happy to help with any such review and give the Department some pointers.

Declan O'Loan (Social Democratic and Labour Party, North Antrim)

I welcome the Minister to Question Time.

As Mr Hamilton rightly said, there is a lot of novel thinking going on about funding for social housing. I understand what the Minister has said about the responsibility of the Minister for Social Development in that area, but clearly there are also serious financial issues. Therefore, I urge the Minister to go further than he has done in his contribution and say what his Department has done in researching the issue and what novel forms of funding his Department could bring to the table.

Sammy Wilson (DUP, East Antrim)

I thank the Member for his question. I hope that I am not treading on the Minister for Social Development’s toes, but I have already met a number of people who are interested in bringing private finance to the social housing sector. The sources of that funding range from the construction industry to pension funds, and I have looked at how that finance might be innovatively used. I know that some of them have spoken to the Minister for Social Development, too.

The Department of Finance and Personnel can help in a number of ways. First, once we go down the route of looking at innovative proposals, procurement issues will be involved, and some of those will be complex: the Department can bring its expertise to bear. Secondly, there is no point in looking for innovative sources of finance if finding them has an impact on the block grant. Again, the Department can provide advice and expertise on how any such finance might affect the Treasury’s view of money that it already gives to Northern Ireland and whether the method of finance involved is likely to have an impact on the block grant.

Thirdly, the Department of Finance and Personnel can help with the economic evaluation of such schemes. I looked at one scheme and met representatives of the pension fund. Such schemes are very often complex and will have long-term implications for housing association and social housing revenue, and my officials can evaluate the longer-term aspects.

Roy Beggs (UUP, East Antrim)

2. asked the Minister of Finance and Personnel which Departments and agencies have recently introduced a recruitment freeze, or a policy to cut or reduce overtime. (AQO 349/10)

Sammy Wilson (DUP, East Antrim)

Due to financial pressures, the Department of Finance and Personnel, the Department of the Environment, the Department for Regional Development and the Department for Employment and Learning introduced a temporary freeze on recruitment, promotion and non-essential overtime to allow them to consider their financial positions in light of budgetary constraints.

Roy Beggs (UUP, East Antrim)

I thank the Minister for his answer. Recruitment freezes are much more preferable to the costly alternative of redundancies. Does the Minister agree that recruitment freezes can expose areas of need and work required due to staff being in the wrong place; and will he acknowledge that his late acceptance of a financial black hole may well have contributed to the problem, and that this matter should have been addressed earlier?

Sammy Wilson (DUP, East Antrim)

I wondered how long it would be before the black hole appeared. There are more black holes in the Assembly than there are holes in Cromac Street. [Interruption.]

William Hay (Speaker, Foyle)

Order.

Sammy Wilson (DUP, East Antrim)

There are limitations to the use of recruitment freezes. Although those four Departments introduced a freeze, it was for a very short time in order to allow them to consider their financial positions. Departments might well look at the use of temporary agency staff, overtime bans, recruitment freezes and redeployment. Therefore, there are a number of ways to deal with this matter. Financial pressures will inevitably come, and Mr Beggs will, I am sure, know from the discussions which his party has had with its new allies that they might be even greater than at present. We will have to manage that, which will mean managing the number of staff used by Departments.

Thomas Burns (Social Democratic and Labour Party, South Antrim)

The hole in Cromac Street will be filled in by the end of the week. Will the number of people employed in the Civil Service decrease in light of those recruitment freezes?

Sammy Wilson (DUP, East Antrim)

The number of Civil Service posts was reduced by almost 2,000 in the past 18 months. That was not entirely as a result of recruitment freezes, but was also due to people leaving and their posts not being filled. It was also decided that some posts, including some in my Department, would no longer be held, and they will, therefore, not be filled when they become vacant.

We envisage that there will be a further reduction of 2,000 to 2,500 people in the Civil Service between now and 2012.

Séan Neeson (Alliance, East Antrim)

3. asked the Minister of Finance and Personnel for an update on the status of the Regional Economic Strategy. (AQO 350/10)

Sammy Wilson (DUP, East Antrim)

The need to produce a regional economic strategy is a legacy of direct rule, during which Her Majesty’s Treasury made it a requirement on all the devolved Administrations throughout the UK to produce such a strategy. The issue has changed considerably since then, because the economic strategy for Northern Ireland is now contained in the Programme for Government, which has placed the promotion of the economy and economic growth at the centre of our activities, policies and spending although, in light of economic and fiscal changes, the Executive need to, and do, constantly assess the policies.

There is, however, an underlying, long-term vision for the local economy, which is that we should have an innovative and dynamic economy that is founded on a number of bases, such as strong productivity growth that is driven by high-value-added human skills, as well as research and development. That vision is reflected in the original draft regional economic strategy, but it is central to the Programme for Government. The latest report by Professor Barnett reinforced the need to continue to pursue those objectives, if we are to have a thriving economy for the future.

William Hay (Speaker, Foyle)

I call Mr McLaughlin for a supplementary question.

Séan Neeson (Alliance, East Antrim)

Mr Speaker.

William Hay (Speaker, Foyle)

My apologies, Mr Neeson. I call Sean Neeson for a supplementary question.

Séan Neeson (Alliance, East Antrim)

I heard what the Minister said, but does he recognise that the lack of an economic strategy limits what the Executive can do in relation to rebalancing the economy? He mentioned the Barnett review; will that not be constrained without the required overarching strategic policy?

Sammy Wilson (DUP, East Antrim)

I hope that I have made it clear to the Member that our economic strategy is now embedded in what we do, as decided by the Assembly when it voted in support of the Programme for Government. The Programme for Government does not only state the overall strategic objective of growing the economy through the targets and policies that are highlighted within it; it indicates the means of measuring whether we are achieving those targets. Therefore, I do not think that Professor Barnett’s report is hampered in the way in which the Member has stated.

If anything, the Barnett report indicated that we were doing many things right, although it also stated that there was a number of things that we should do differently, and those will be consulted on by the Minister of Enterprise, Trade and Investment. For instance, we should, perhaps, move away from providing selective financial assistance to firms and look towards spending more money on human skills and research and development, as I mentioned. That will have to be looked at by the Assembly and the Minister.

Mitchel McLaughlin (Sinn Féin, South Antrim)

Go raibh maith agat, a Cheann Comhairle. Given the number of jobs that have spilled out of the economy as a result of the economic downturn, does the Minister still believe that the targets in relation to the economically inactive, as set out in the regional economic strategy, can be achieved by 2015?

Sammy Wilson (DUP, East Antrim)

We do not know what will happen or how quickly the economy will turn around between now and 2015.

Some of the targets that we have set ourselves in the short term will not be met due to circumstances beyond our control. However, the longer-term goals are worth meeting. We must get people onto the employment list and into jobs if we are to give them a stake in society and improve their economic and physical well-being. The Assembly and the Executive will be judged on what they do for that most disadvantaged part of our society. Very often those people are in long-term unemployment and we must target and address their situation.

David McNarry (UUP, Strangford)

I thank the Minister for his answer so far. Does he concede that the regional economic strategy, along with that other embedded historic relic, the Programme for Government, needs to be revised to take account of the contraction in the economy, the doubling of unemployment, the public expenditure cuts that he now proposes and the inevitable black hole in public finances that he expects me to mention and which he has now been forced to admit, all of which, apparently, are endorsed in today’s report —

William Hay (Speaker, Foyle)

Will the Member conclude his question?

David McNarry (UUP, Strangford)

— the Economic Eye winter forecast by Ernst and Young and Oxford Economics?

Sammy Wilson (DUP, East Antrim)

I know that Mr O’Loan has difficulty with his eyes, and perhaps Mr McNarry has difficulty with his ears, because I do not know at what stage I admitted to there being a black hole. Nevertheless, if the Hansard report turns that up, I will be more than happy to concede the point.

[Interruption.]

William Hay (Speaker, Foyle)

Order.

Sammy Wilson (DUP, East Antrim)

However, I do not think that I made any such admission today.

With regard to the economic strategy responding to different economic circumstances, I have made it clear already that it must do that, and the actions of the Executive show that we are already doing that. For example, in its report this week the construction industry indicated that, since 2007, there has been an increase of 80% in the index of infrastructural programmes being accounted for in the construction industry. In fact, 54% of all construction activity is financed through the Assembly, and that is the result of a decision made by my predecessor to increase the amount of money spent on infrastructure and investment by £1 million each day in the past year. It is a result of the redirecting of the activity of the Executive to respond to the circumstances that we faced.

The Rates (Amendment) Act (Northern Ireland) 2009 was passed recently, which gives business rates relief to 16,000 small businesses. That means that we must redirect money from something else because the cost of that relief will be about £10 million. However, we are redirecting that money because we saw that there was a problem as a result of the economic circumstances and that it needed to be dealt with. I accept that we need to adjust and be fleet-footed, and perhaps we are not fleet-footed enough at times, but there are examples of when the Executive and the Assembly have done that already.

William Hay (Speaker, Foyle)

I remind Members not to use Question Time to make statements. Question Time is an opportunity for Members to put questions to Ministers. The same happened yesterday. In future, I will ask the Member to take his or her seat, and I will move on to the next Member.

Alasdair McDonnell (Social Democratic and Labour Party, Belfast South)

Thank you, Mr Speaker. I will try to be succinct.

Does the Minister agree that people are confused about the economic strategy? Although he is content that it is buried in the Programme for Government, nobody is quite sure what it is. Would it not be useful to extrapolate the situation and tell people specifically what it is? Does the Minister not feel that it would be useful to amalgamate the three different policy units? There is an economic policy unit in the Department of Finance and Personnel, in the Office of the First Minister and the deputy First Minister, and in the Department of Enterprise, Trade and Investment. Surely someone should be in charge. Three different units cannot be in charge.

Sammy Wilson (DUP, East Antrim)

I know that the Member has a difficult task ahead of him in his bid for the leadership of his party. I hope that he has not put his foot in it. The last part of his question represents a rather off-message response.

I understood that as far as the SDLP was concerned, the number of Ministries was almost sacrosanct and that to reduce that number would be a betrayal of the Belfast Agreement. Perhaps a new leadership is coming through, and perhaps that is the innovation that we will see from the potential new leader. If that is the case, I welcome it, because I support the Member’s point. Margaret Ritchie put me up to that, by the way.

Professor Barnett also supports the Member in that view. He talked about a Department of the economy, which would involve the amalgamation of at least two Departments and the removal of the economic unit from the Office of the First Minister and deputy First Minister. I think that that would be a sensible first step in the rationalisation of Government Departments, and I thank the Member for his support.

Ian McCrea (DUP, Mid Ulster)

4. asked the Minister of Finance and Personnel to outline the total annual operating costs for all unelected quangos. (AQO 351/10)

Sammy Wilson (DUP, East Antrim)

In the 2008-09 financial year, the gross expenditure of public bodies in Northern Ireland was in the region of £9·7 billion. That includes the costs of some significant providers of public services, such as Northern Ireland Water, Translink, health and social services boards and education and library boards. Members can see the details of those bodies in the annual report that DFP will publish. A copy of that report will be placed in the Assembly Library.

Ian McCrea (DUP, Mid Ulster)

I thank the Minister for his answer. I am sure that the House will agree that the figure of £9·7 million for the previous financial year is certainly excessive. Will the Minister detail what mechanisms are in place for reviewing the number of public bodies that exist?

Sammy Wilson (DUP, East Antrim)

First, I should make it clear that I wish that it had been only £9·7 million — we spent £9·7 billion. The mechanisms for reviewing public bodies are, of course, the responsibility of each Minister and their Departments. In the past year, there has been a reduction of eight of those bodies — seven by the Minister of Health in the reorganisation of the Health Service and one by the Minister of Culture, Arts and Leisure when he decided to close one of the public bodies in his remit.

Ken Robinson (UUP, East Antrim)

I thank the Minister for bringing us up to date on the amount of money that is going through the quangos. However, although it is one thing to reduce quangos and their power — and we would all agree with that — the impact of that loss of spending power could be quite catastrophic to some of our local economies. Has the Minister made any assessment of the impact that such a drop would have?

Sammy Wilson (DUP, East Antrim)

First, there is not necessarily a connection between reducing the number of quangos and reducing spending power. I will take health as an example, given that I mentioned it to the Member earlier. In that case, the question was whether we should redirect spending from one function to another and whether there was a need for a public body, with all its administrative attachments, if that money might be spent more effectively in another way. Although some of the reductions will be for efficiency savings, some of which have to go back as cash savings, much of it should be directed toward making sure that we have not established bodies that we do not really need, the spending on which could be better used in the Department in question or in other Departments to provide more effective services. That is how I would like Departments and Ministers to look at the matter.

Alban Maginness (Social Democratic and Labour Party, Belfast North)

I thank the Minister for his answer. He detailed a huge amount of money. Has he or his Department taken any action to assess the effectiveness and value for money of those quangos?

Sammy Wilson (DUP, East Antrim)

Again, it should be the role of Ministers — and when I was in the Department of the Environment I regarded it as my role as Minister there — to look at the bodies that are under their control and ask whether they are effective, whether they could be amalgamated and whether they are still serving a useful purpose.

Ministers say all the time at Executive meetings that certain responsibilities are theirs and that they do not want DFP to plunder through their Departments. If Ministers do not consider how resources might be used more efficiently, in a time of spending constraint, they will have to bear the consequences. That has been the case in some Departments.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

5. asked the Minister of Finance and Personnel whether he will continue to pursue the recommendations of the Bain report on the location of public sector jobs, recognising the social and environmental value of these proposals. (AQO 352/10)

Sammy Wilson (DUP, East Antrim)

The question of whether to pursue the recommendations of the independent report on the relocation or location of public sector jobs is a matter for the Executive. I wrote to Executive colleagues at the end of September to say that I am keen for an early discussion. However, we are all aware of the funding pressures that the Northern Ireland block faces, and spending on the relocation of public sector jobs would require funding from other services.

I am coming to the conclusion that the cost of £40 million that Professor Bain identified for the pilot phase alone is simply not affordable to proceed to implement the recommendations, nor, as the report states, would it represent value for money. Therefore, although the Executive will make the final decision, we must bear those points in mind.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

Earlier, the Minister referred to people who could not see or hear. He might want to learn to listen a bit more, because Dr McDonnell’s question was about economic policy units and not about the number of Departments. I trust that he will answer the question in writing in due course.

Whatever the arguments about the relocation of existing public services, does the Minister agree that there are opportunities for the Government’s new or restructured public bodies, including a victims’ service, a development corporation for Maze/Long Kesh, the Charity Commission and the Business Services Organisation to name but a few, to be located outside the Belfast region?

Sammy Wilson (DUP, East Antrim)

I suspected that that might be the tenor of the Member’s question. It is frightening to think of the number of new public bodies that are being created in Northern Ireland. Before the Member starts to talk about relocating jobs outside Belfast, perhaps his party and others should ask themselves the same question: where does the example start? Before I came to the Chamber, I asked someone to google the SDLP for me, because I am not good at doing that myself. The SDLP leader lives in Londonderry, and the bulk of SDLP councillors and representatives represent areas outside Belfast, but the SDLP headquarters are at 121 Ormeau Road, Belfast. Before the Member starts to ask questions about public sector relocation and location, perhaps his party should look at the location of its headquarters.

Often, there are good reasons for government bodies being located in the capital city and close to the seat of government. However, I take the Member’s point. Relocation is one thing, but there may be opportunities for looking at places outside Belfast in the case of new government bodies that do not have relocation costs and do not involve relocation disturbances. That would be the responsibility of the individual Ministers who are responsible for the new bodies.

Jennifer McCann (Sinn Féin, Belfast West)

Go raibh maith agat. Given that the Minister said that there are good reasons for government bodies to be located in Belfast, why are those bodies resistant to locating jobs in parts of Belfast, such as west Belfast, which is one of the most deprived areas of Belfast and an area of disadvantage and need? That was set out in the report of the West Belfast and Greater Shankill Task Forces.

Sammy Wilson (DUP, East Antrim)

First, relocation, whether outside or inside Belfast, will still carry costs.

I must say to the Member that I really do not accept that people cannot travel from west Belfast into the city centre, which is a journey of a couple of miles, by good public transport, by bicycle or on foot. I cannot accept that it is necessary to relocate offices to the end of someone’s street. Surely to goodness, Belfast is a compact enough city for people from all areas to be able to reach jobs that are located in the city centre.

William Hay (Speaker, Foyle)

Order. That concludes questions to the Minister of Finance and Personnel. The House may take its ease until the debate on the Department of Justice Bill is resumed.

John Dallat (Social Democratic and Labour Party, East Londonderry)

On a point of order, Mr Speaker. As a Member who has a hearing defect, I ask you to give a ruling on the appropriateness of making references to people’s eyesight and hearing when answering questions.

William Hay (Speaker, Foyle)

Of course, as far as possible, Members should be sensitive to that issue, which Mr Dallat has raised on a number of occasions. I ask the House to be mindful of that.

Executive Committee Business

William Hay (Speaker, Foyle)

Order. We shall resume the debate on the Department of Justice Bill. I ask Mr Alex Maskey to continue with his remarks.

Alex Maskey (Sinn Féin, Belfast South)

Go raibh maith agat, a Cheann Comhairle. I want to pick up briefly from where I left off, which was the question of d’Hondt and the SDLP’s argument of its entitlement to the justice Ministry, if it were established.

In an intervention, Mark Durkan said that his party could go to the Secretary of State to seek provision for 11 Departments, and so on. My argument, which is essentially different to his, is that there must be agreement to go to the British Secretary of State to seek anything. Mr Durkan presented his argument in such a way that suggested that people could go to the Secretary of State to ask for anything. I invite him to seek that agreement.

Mark Durkan (Social Democratic and Labour Party, Foyle)

We can go to the Secretary of State.

Alex Maskey (Sinn Féin, Belfast South)

Mr Durkan made that point already, and I am responding to it. It is easy for the Member to throw out a comment about being able to go to the Secretary of State. However, he and his party have failed consistently to explain who they will go with and who they will reach agreement with to do that.

Clearly, they will not reach agreement on key issues with the Ulster Unionist Party, for example. I do not know what other party the SDLP would seek to reach agreement with. It does not appear to have been able to put together a package that shows that it, or a collection of parties, could secure a vote in the House and thereby go to the Secretary of State, or that it could reach any other agreement for that matter. Therefore, the essential issue remains that —

Mark Durkan (Social Democratic and Labour Party, Foyle)

Will the Member give way for clarification?

Alex Maskey (Sinn Féin, Belfast South)

I am sorry; I have taken some three interventions already. The Member will have plenty of time later to clarify his position.

Mark Durkan (Social Democratic and Labour Party, Foyle)

And I will.

Alex Maskey (Sinn Féin, Belfast South)

He can all right. Talk is cheap, so the Member must clarify whom he would reach agreement with to secure all those great and wonderful things that he wants.

I want to recap on a number of points. First, I want to return to the sunset clause, which my party considers to be both a vital protection and an opportunity. My party’s intention is to establish a justice Department for beyond 2012. I am sure that other parties are also committed to that.

If, during the intervening period between the justice Department’s establishment and 1 May 2012, the experience has been positive, the sunset clause, which my party hopes will be agreed, offers the Assembly the opportunity to consider what will occur beyond May 2012 in a positive, mature and rational light and to establish a permanent justice Department that is fit for purpose and that has all the necessary protections.

I look forward to that opportunity. I believe that the vast majority of the public want that to happen in the positive light that I described.

The SDLP keeps trying to hammer home its entitlement to the Department of justice under d’Hondt, but it has no such entitlement. There is no provision for 11 Departments and, therefore, no provision to run d’Hondt from one to 11. If we were to secure 11 Departments, the essential argument remains that d’Hondt would be run from one to 11. Does anyone suggest that the SDLP has the God-given right to take the eleventh Department and that all the other parties would sit back and wait until they did?

Alban Maginness (Social Democratic and Labour Party, Belfast North)

[Interruption.]

Alex Maskey (Sinn Féin, Belfast South)

With respect, I have already taken numerous interventions.

William Hay (Speaker, Foyle)

Order. Let the Member finish.

Alex Maskey (Sinn Féin, Belfast South)

The SDLP’s repeated position is that it has the right to the next Department. It does not. If, as I wish would happen, 11 Departments were to be established here this afternoon through running d’Hondt, I would love, by 5.00 pm, to be putting Sinn Féin’s hat into the ring for the justice Department. At least two other parties are ahead of the SDLP in the queue, and they would have a serious argument to make on their behalf.

Sinn Féin is determined to secure the transfer of policing and justice powers and pursues that aim relentlessly. In the first instance, powers should be transferred into the hands of elected representatives from here. We like the idea of, and are totally committed to, d’Hondt, but there must be transitional arrangements. Sinn Féin was involved in negotiations, although other parties, particularly the SDLP, seem to think that they were the only ones involved. The SDLP must have been talking to itself in 1998 because, from what it says, no one else was involved. Sinn Féin is wedded to the necessity of power sharing.

Danny Kennedy (UUP, Newry and Armagh)

Is it the ambition of the Member, or his party, to hold the Department of justice at some stage?

Alex Maskey (Sinn Féin, Belfast South)

I thank the Member for his question. Why would any party with a mandate deny itself the opportunity to take responsibility for any area of governance? I presume that Mr Kennedy’s party — the Ulster Unionist Party, UCUNF, or whatever its name may be this afternoon — would consider taking any Department to which its mandate secured it the right. I look forward to a time when all parties, including mine, will have the opportunity to consider each Department before deciding which to select under d’Hondt.

The absolute inclusion of all parties is essential to the political dispensation in which we are all involved, and that brings me to my next point. Mr Attwood referred to the process of exclusion, but Sinn Féin is committed to a process of inclusion. That is why there is a power-sharing Executive: the parties in the Executive share power. The difficulty for the SDLP is that it does not occupy a lead position in OFMDFM, but that is simply the democratic outworking of the last election. That may change: who knows? As the SDLP is not in a lead position, it falls to Sinn Féin and the DUP to work their way through the issues by showing leadership and working inclusively with the other parties. Mr Durkan, the outgoing leader of the SDLP, is aware of that. Sinn Féin and other parties have spoken with the SDLP about the issue, and SDLP Members sit on the Assembly and Executive Review Committee.

William Hay (Speaker, Foyle)

In trying to keep the discussion to the amendments and clause 2, I have shown some latitude to all Members. However, I detect that some Members are straying outside the amendments to the justice Bill and, specifically, at present, support for, or opposition to, clause 2. I remind Members that, as far as possible, they should keep to the subject of the debate, which is the Department of Justice Bill.

Alex Maskey (Sinn Féin, Belfast South)

I thank the Ceann Comhairle for his reminder to Members; I will do my best to honour that commitment. I do not wish to recap to ensure that I clarify all the relevant points.

We support the sunset clause because it is very important, and we clearly support clause 2 and the Bill as a whole because we are focused on getting policing and justice powers transferred into the hands of locally elected representatives. The arrangements in clause 2 are interim and transitional, and that is verified and underscored by writing a sunset clause into the Bill that will bring those arrangements to an end by May 2012. Sinn Féin supports and will continue to support the Bill as it stands because we believe that it represents the best efforts of people to ensure that powers are transferred as soon as possible.

The time frame mentioned in some of the amend­ments has been dealt with earlier. It will come up again later, so I suppose that we can deal with it then, too. As far as Sinn Féin is concerned, the Bill does not require a time frame. Although some people want a time frame to be included, the Bill is an essential piece of enabling legislation that does not require one. The Bill needs to be passed sooner rather than later, because it is a necessary element of devolution. People who argue, inside and outside the House, in favour of powers being transferred must explain how voting against the Bill and working actively against it will serve that need.

Our party supports the Bill, and we oppose the amendments unapologetically in our relentless pursuit of having the powers of policing and justice transferred to locally elected representatives as soon as possible.

Naomi Long (Alliance, Belfast East)

I support the Bill and oppose the amendments. The devolution of policing and justice is a positive step for Northern Ireland. It brings potential benefits, because it allows much closer collaboration and co-operation among the existing Departments and the Executive on a range of issues relating to policing and justice. My party believes that it should happen as soon as possible.

However, we have never set artificial deadlines for the process, because we recognise that the issue is sensitive in respect of political and community sensibilities. We want our approach to be constructive because we want people in the community to have genuine confidence — not the kind of confidence that is about setting up a series of hurdles for people to jump — in the House and in the Executive to competently and capably deliver on the issues. We have tried to be constructive from our position outside the Executive, and I am trying to do the same now.

I wish to speak about the amendments and the picture painted of them. First, as to whether clause 2 should stand part of the Bill, the Alliance Party has never made any secret of the fact that it believes that the Executive should not have been formed using the mechanism laid out in the Good Friday Agreement. That was not our first choice, and we have been very open and honest about that.

We support moving from a mandatory coalition to a voluntary coalition in which Members negotiate a Programme for Government and work together on it. That would create a level of cohesion and co-operation in the Executive and tie Members to a programme in a way that the mandatory coalition has not done. We have been open and honest in saying that we would prefer that. However, we respect the fact that some Members are not comfortable with that or confident that it would work. Some view voluntary coalition as a mechanism to exclude them, while others think that it is a mechanism that would benefit them by excluding others. My party believes that voluntary coalition is not about that; it is about trying to find a system that works.

We have made no apologies for the fact that we are not and never have been wedded to d’Hondt. We view it simply as a mechanism to deal with proportionality. However, it is only one of many mechanisms that can do that. It can be argued that, in many cases, it is not the best mechanism for dealing with proportionality. The Good Friday principles underpinning the issue are inclusion and proportionality, not d’Hondt, and they can be achieved in a range of ways. We are again in danger of making the mechanism the principle, and that is a very foolish thing to do.

I aspire to the day when we no longer need the d’Hondt mechanism for any of our Ministries and when we can move away from the type of mandatory coalition that we have currently. Therefore, I welcome any opportunity to demonstrate how other mechanisms can deliver. I believe that the Bill presents such an opportunity.

It is not about who gets the job of justice Minister; it is about how a person gets the job. The Bill provides a better mechanism for electing a Minister than that which we use at present.

I am not going to shed any tears if the person who is appointed justice Minister is appointed on the basis of a cross-community vote. However, I am realistic enough to know that clause 2 is not some sort of Trojan Horse by which we will be able to speed up getting voluntary coalition into the Assembly. Much as I would like to see that happen, and much as I wish that that were the case, I do not believe that to be the reality. However, as political fixes go, this is preferable to those that we have chosen in the past. Therefore, I have no difficulty with clause 2 standing part of the Bill.

Alex Attwood talked about the rules of democratic inclusion. However, which ones was he referring to? The d’Hondt mechanism is only one of many ways by which to achieve democratic inclusion. I find it quite strange that when we talk about the rules of democratic inclusion, we talk about it in those broad terms. The SDLP is wedded to the d’Hondt process. It amazes me that an obscure Belgian gets so much attention every time we debate any issue in the Chamber.

The reality is that the SDLP has acknowledged that there may be other, better means of inclusion. Through the Equality Commission, the SDLP challenged Lisburn City Council for allegedly breaching equality rules because it went beyond other inclusion mechanisms so that it could use d’Hondt. I do not disagree with the position that the SDLP has taken on that matter. However, it raises the question that if other methods of inclusion are good enough for other places, why is the SDLP so wedded to the d’Hondt mechanism when it comes to appointing a justice Minister? There is a contradiction in the SDLP’s position on the d’Hondt process.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The SDLP’s concern is that clause 2 is a departure from the provisions of the Northern Ireland Act 1998. Those provisions are based on the agreement. If there is a review of the agreement, and if parties agree to a different form of inclusion according to mandate — such as the Sainte-Laguё method — that mechanism will become the rule. However, the principle of the agreement remains inclusion according to mandate. Clause 2 is a departure from inclusion according to mandate and is a departure from the existing Act.

Naomi Long (Alliance, Belfast East)

I will raise a number of issues in response to that.

The first departure from the Good Friday Agreement is having an extra Department. If we are to devolve policing and justice —

Mark Durkan (Social Democratic and Labour Party, Foyle)

It does not have to be an extra Department.

Naomi Long (Alliance, Belfast East)

If we are to devolve policing and justice, it looks, at this stage, as though that will require an extra Department. If we are to redraw the Departments, that is another departure from the Good Friday Agreement. Furthermore —

Mark Durkan (Social Democratic and Labour Party, Foyle)

No, it is not.

Naomi Long (Alliance, Belfast East)

Furthermore, Mr Durkan specifically said that clause 2 would be a departure from inclusion on the basis of mandate. However, nobody knows who the justice Minister is going to be. There is no guarantee that it will not be someone who is being included on the basis of mandate. Frankly, I think that people are getting ahead of themselves in suggesting otherwise.

I want to deal with the issues on amendment Nos 2, 3 and 4. I listened very carefully to Alex Attwood as he made the arguments in favour of those amendments. He did two things. First, he emphasised the likelihood of failure to agree a long-term solution by the deadline of 2012, and secondly, he emphasised the consequences of that failure. I will look at both those points, beginning with the first.

Alex Attwood emphasised the impossibility of finding agreement by 2012 on the future shape of a Ministry, and he purported that that was an argument for tabling his proposed amendments. On the surface, that argument has a certain ring to it, from our perspective. Mr Attwood said that there has been a series of issues that the Executive failed to reach agreement on and that that is evidence that they are not capable of reaching agreement.

That argument does not, however, bear close scrutiny for a number of other reasons. First, if we had followed that pattern in 1998, we would not be sitting here now. Secondly, if we had said that we would not move forward because the risk of failure was too great, we would still be where we were in 1998 and we would perhaps be even worse off.

We did not say that getting the UUP and the SDLP to agree thing in the future was the issue. We did not say that getting engagement between the UUP with Sinn Féin when the electoral tables were turned was a reason not to proceed with the process. We did not even say that the idea of getting the DUP and Sinn Féin to go into Government together, which was unimaginable at the time, was a good enough reason to stop the process. In such instances, instead of not embarking on the process, the answer is to carry out the process in a controlled way and to see it for what it is — a process. The process will evolve over time in the context and circumstances that present themselves, and it is dependent on the work that will be done over the next 30 months. I cannot accept the argument that Executive failures are a reason for stopping the process of devolution.

The other argument was about what will happen if we fail to agree by May 2012. For me, such a scenario raises a much deeper question, which was not touched on. If we cannot agree on what happens with the Ministry for policing and justice by 2012, much more significant questions about the future of the institutions will be raised. We all realise that. There is more import and more pressure to reach a solution by 2012. It is very simplistic to say that we cannot do it. I do not buy into that argument, because there is too much at stake if we do not agree a solution.

The third thing is this; if it is so inconceivable that parties in the House are capable of reaching agreement on the issue in 30 months, how come we have an interim agreement that people are happy to sign off on? The logic is that, if people can sign off on an interim agreement, it is not beyond their capabilities to sign off on a longer-term agreement. I cannot follow the logic of the argument that we cannot reach agreement.

Mr Attwood then argued about the consequences of failure. There seems to be conflict in his argument, because its logic was very contorted. Mr Alex Maskey highlighted that in his speech. In great depth and with great vigour, Mr Attwood painted the most apocalyptic scenario possible for May 2012. He used the word “catastrophic” twice. I listened carefully to his description of what could happen in 2012, and it conjured a picture in my mind of prison doors being left open, prisoners wandering onto the streets and various other types of madness and mayhem. All of that was based on the assumption that the Assembly would fail to agree.

Mr Attwood then said that Westminster would not allow such a scenario to happen. According to his legal advice and in his view, an Order in Council would come from the Secretary of State to stave off the apocalypse. At that point, I was able to draw breath again and feel much calmer about the situation.

After posing the grave and potentially catastrophic consequences of a failure to agree, Mr Attwood reassured us that there will not be a cataclysmic meltdown and that there is a fallback position. His concern seemed to switch from the apocalypse ahead to his suspicion that the First Minister and the deputy First Minister know that there is a fallback position but do not want to articulate it in the Assembly. That is what I am not clear about. I am not sure that it matters whether people know that there is a fallback position, because, any time between now and 2012, legislation and amendments to deal with a likely meltdown could be made in Westminster. Frankly, it is inconceivable that the Government would allow our Prison Service to implode, for example. Therefore, I cannot understand the logic of an argument that states that, on the one hand, there will be cataclysm and then states that there will not and that, because people will not admit that, we should vote against the Bill in its present form.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Those who supported and passed the legislation that provides for the sunset clause in May 2012 have literally legislated for failure. We did not introduce the concepts of failure, collapse and dissolution. Members legislated for that because it was the best interim solution that they could come up with. Those who supported it, particularly Sinn Féin, have made a virtue of saying that there is no fallback position. We believe that there could be a fallback position that could be used by the British Government. However, it may not work, because it depends on votes in the House.

Naomi Long (Alliance, Belfast East)

I will address several aspects of that intervention. First, the matter seems to have been distilled down to the SDLP trying to point out that what Sinn Féin has said all along is incorrect. That seems more like an attack for party political purposes than dealing with concerns about the stability of the justice Department. I suspect that such logic underpins a lot of what we are listening to today. That is part of the difficulty.

I do not understand how anyone can believe, based on their legal advice, that there is a fallback position and, at the same time, articulate an argument that says that there is no such position. It is completely illogical, and the argument does not stack up. Regardless of whether the fallback position exists at the minute, it could be created at any point in the future. Therefore, the idea of apocalypse does not add up. The SDLP has argued that it is, in essence, trying to avert crisis and crisis-proof the legislation, yet it has proposed a series of amendments that appear to be designed to precipitate a series of mini crises in the system.

Mark Durkan (Social Democratic and Labour Party, Foyle)

No.

Naomi Long (Alliance, Belfast East)

The Member beside me says no. However, putting time frames, deadlines and demands on such matters and introducing additional sunset clauses into the legislation has the potential to create more of a crisis.

Amendment No 1 sets a deadline. Everybody in the Chamber recognises that the issue will be subject to detailed and sensitive discussions in which everyone in the House has an interest. I agree entirely with Members who feel that, for whatever reason, they do not know all the facts. They should know all the facts, because this is a matter of importance, not only to parties represented in the Executive but to those that are not represented. The Alliance Party’s voters need to have confidence, too, as do those who vote for the SDLP, the Ulster Unionists, the DUP, Sinn Féin, the Green Party, the PUP and others who sit in the House. People need to have confidence that the system will work, because it is a serious matter. We do not take issue with any of that. However, creating deadlines is a way to heap on pressure, and it is deeply unhelpful. I suspect that it exposes the SDLP’s need to do down any proposals that come from the Executive. That is unfortunate.

I have read amendment Nos 2, 3 and 4 several times. I listened carefully to Alex Attwood’s speech, in which he proposed the amendments, to try to get to the bottom of what they would achieve. That remains unclear. The amendments seem to force the First Minister and the deputy First Minister to make written and oral statements to the House within seven days, after which there would be a vote.

Mark Durkan (Social Democratic and Labour Party, Foyle)

That is correct.

Naomi Long (Alliance, Belfast East)

The Member has provided helpful clarification from a sedentary position. That is what I thought that it meant. Therefore, I am unclear about the point of the amendments. The seven-day requirement seems to place potentially unrealistic and silly deadlines in the Bill in the hope that somebody will drop the ball, not jump through the hoop, and revert to d’Hondt. Moreover, it seems unnecessary, because no other legislation that has been passed in the House has proposed that somebody has to report within seven days. Indeed, if people want the First Minister and the deputy First Minister to explain — I think that is the word used in the amendment — their view on the issues, they can do so at any time now. They do not have to wait until the Bill is passed. It does not change anything. I cannot get my head around that: it does not actually change the situation.

(Mr Deputy Speaker [Mr McClarty] in the Chair)

4.00 pm

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Member said that no one has ever proposed here that statements should come from the First Minister and deputy First Minister, but I recall that her party moved amendments to the Financial Assistance Bill that would have required that statements be made by the First Minister and the deputy First Minister in relation to the implementation of that Bill and any actions flowing from it.

Naomi Long (Alliance, Belfast East)

I said that I did not recall a piece of legislation being passed anywhere that required statements to be made within seven days. It is clear that Mr Durkan was not paying attention, because our proposal was that the First Minister and deputy First Minister should report to the Assembly on an annual basis. It was an ongoing clause, not simply another hurdle that they had to jump over after commencement with a once and once only explanation. The comparison does not stack up, because there was substance to our amendment. There is no substance to the SDLP’s amendments.

I will move to the issue of clarification and explanation. The First Minister and deputy First Minister are in the Chamber, so perhaps when they respond they will be able to give clarification. However, my reading is that they could come in and provide us with an explanation. It might not satisfy us, but such an explanation, written or oral, would not change anything. They would simply have to provide the explanation in order to tick the box. That achieves absolutely nothing, as far as I can tell. I am slightly bemused by that, but on reading the amendments together, it is clear that they are designed so that, assuming that the SDLP’s arguments in relation to clause 2 are lost, another opportunity is created to revert to d’Hondt after commencement. The SDLP’s argument is not about trying to get clarity, because that can be obtained at any time. [Interruption.]

Mr Durkan has been allowed a significant number of interventions, but nothing seems to satisfy him, because as I try to make my contribution to the debate, he is constantly chirping in my ear, which is very distracting. I have been generous with the Member in allowing him to have interventions. I wish that he would either stand up and make his point or allow me to make mine.

Mr Attwood made a long and meandering speech containing a lot of convoluted logic, but eventually, at the end, we got to the core of the issue. He said that the SDLP felt entitled to the justice Ministry and that that entitlement would not be guaranteed under clause 2. There were those who, in previous interventions, said that they were happy to run d’Hondt for all 11 Departments, but Mr Attwood said that he objected strongly to the SDLP’s being excluded from the process to appoint a justice Minister. He raised the issue that the DUP did not see the SDLP as fit to do the job and that his party was being blocked as a consequence of Sinn Féin’s position. There was more to Mr Attwood’s speech than the issue of being nominated for any Ministry.

However, while the justice Ministry would not be guaranteed under clause 2, neither is it ruled out. It is not inconceivable that the SDLP could be nominated and voted through on a cross-community basis. The assumption that it will not happen is an SDLP assumption; it is not shared by anyone else. To be fair, Mr Attwood delivered a heart-rending plea for the SDLP to get the justice Ministry, which almost brought a tear to my eye. He said that his party had been slighted and that its contribution to policing and justice had not been fully recognised.

The Alliance Party could make an equally heart-rending plea: we could say that throughout the years when things were very difficult in Northern Ireland, coming from a cross-community background and representing a difficult constituency, the Alliance Party maintained its links with the police service and sat on the Police Authority when others would not join it and would not do that job. It is a bit rich for people to expect sympathy from those of us who weathered the storm when it was very difficult to do so. From that point of view, I do not have a lot of sympathy on that point. However, I am less concerned with who the Minister for justice will be, what party he or she represents or where he or she is from, than I am about what a Minister for justice will do for the people whom they are elected to serve. That is what matters: it is the programme that a Minister for justice will follow and what that person will achieve that is of consequence. I cannot see any reason why any party here would be guided simply by self-interest.

Other Members have raised the issue of d’Hondt in relation to clause 2. If an eleventh Ministry were to be added, various meetings with the Secretary of State notwithstanding, d’Hondt would have to be rerun for all Departments. That is clearly stated in the Northern Ireland Act 1998. If that were the case, I do not think that anyone believes that policing and justice would still be on the table when the SDLP got to make the fifth choice, let alone the eleventh. It would say something fairly skewed and malign about other parties in the House if it were still on the table at that stage.

I have some sympathy with Danny Kennedy on that point. He said that the debate was surreal at times. I agree; if we think that policing and justice can be delivered by any means other than ongoing political dialogues and agreement, we are fooling ourselves.

If the mechanisms that were used in 1998 were sufficient for this task and could create the required confidence, I suspect that they would have been used by now. That is not the political reality of this situation, and we need to wake up and accept that.

I am disappointed that the SDLP seems to oppose the devolution of policing and justice unless it benefits them either directly through that Ministry, or indirectly by obtaining a second seat in the Executive. In an intervention to Alex Maskey earlier, the SDLP leader —

Alban Maginness (Social Democratic and Labour Party, Belfast North)

The SDLP is fully committed to the devolution of policing and justice, without conditions. We are fully committed to that, and we have made that plain. I do not know how I can emphasise that point more.

Naomi Long (Alliance, Belfast East)

Perhaps if the SDLP had voted in favour of the Second Stage of the Bill, that would have made it clear. The issue there was the principle of the devolution of policing and justice. [Interruption.]

Mr Durkan is again interjecting from a sedentary position. However, in an intervention to Alex Maskey’s speech, he walked us through the process at Westminster very carefully, and explained how he could vote in favour of a Bill at Second Reading and table a series of amendments in Committee. One should do the equivalent in these circumstances.

Stephen Farry (Alliance, North Down)

The implication of supporting the Bill at Second Stage was that one supported the principle of the devolution of policing and justice and, in particular, the creation of a justice Department in Northern Ireland. It is in order for the SDLP to propose an amendment to change the mechanism in the Bill and go back to d’Hondt; that is a logical position for them to argue from if they wish. However, voting in favour of the Second Stage of the Bill would still have allowed them to do that and, at the same time, would have made clear their support for devolution, whereas voting against it sent out, at best, a very dangerous, mixed message.

Naomi Long (Alliance, Belfast East)

That is exactly the case. The normal way to deal with such a situation is to vote in favour of a Bill at Second Stage and to table any amendments at the next stage. If the amendments fall and people believe that the Bill as it stands is unacceptable, it is at that point that they should vote against it. One does not vote against a Bill at Second Stage if one is in favour of the principle of it, and the principle of this Bill is to devolve policing and justice powers and to create a Ministry of justice. Therefore, the SDLP’s position with regard to the devolution of those powers is unclear.

Mr Kennedy raised some concerns. He referred to the difficulties of the Bill creating a puppet Ministry. He was concerned that, if appointed in the way that was suggested in the Bill, the justice Minister would be a puppet. I do not believe that to be the case; however, I believe that there is a risk that the justice Minister could be a puppet.

The mechanism for appointing the justice Minister will make them no more or less of a puppet than any other Minister; it does not change anything. They would arrive at the Executive table with the same authority and ability to do their job. However, some issues could create the circumstances in which we would be dealing with a puppet Minister. The problem would, first, lie in the potential for a Minister to be removed by cross-community consent. We cannot deal with that, because it is dealt with in legislation that went through another place. It is not something —

Alban Maginness (Social Democratic and Labour Party, Belfast North)

Will the Member give way?

Naomi Long (Alliance, Belfast East)

No; I will not give way on that point.

The way in which a Minister can be removed from office has the potential, in certain circumstances, to make that Minister more susceptible to pressure. However, we cannot deal with that issue, because our legislation is subordinate to the Westminster legislation, which sets out how any Minister would be removed from office. Indeed, the issue arises only when a Minister who is so desperate to hang on to his or her ministerial seat does not resist such pressure. Therefore, in addition to there being a poor mechanism for their removal, it would require a weak-willed Minister with no backbone for that situation to arise. If we are to subject someone to a cross-community vote in the House, I hope that we will pick someone of sufficient calibre and robustness and who has enough backbone to withstand that pressure.

Some Members from the smaller parties on the Executive wax lyrical about the potential for a Minister of justice to be a puppet, but it is dangerous to tread on such ground. It may not be possible to eject smaller parties’ Ministers from their ministerial seats under d’Hondt, but those Ministers have little say over their budgets. Sinn Féin and the DUP have the lion’s share of the votes and can make those decisions. Those Ministers do not have much control over what legislation they can bring to the House, because that is largely in the gift of Sinn Féin and the DUP as well. Some people might say that Ministers from the smaller parties in the Executive, even though they were nominated under the d’Hondt system, could be puppets if they do not have sufficient backbone to walk away when push comes to shove and when they feel that they have been maligned or mistreated.

Danny Kennedy (UUP, Newry and Armagh)

The Member clearly does not listen to, or heed, the First Minister’s assertions that we have a four-party mandatory coalition. There are no puppets in this Administration, and it is not expected that there will be any. The Member seems to doubt that.

Naomi Long (Alliance, Belfast East)

I was explaining the risk of someone’s becoming a puppet Minister. I would not be so rude as to suggest that any of the Ministers from his party or the SDLP is a mere puppet. If Mr Kennedy feels aggrieved by my comments, I may have struck a chord that I did not intend to. I was simply saying that it is possible for Ministers to be nothing more than puppets under the current system if they are willing to accept whatever the two main parties foist on them rather than running the risk of having to walk away. Unless Ministers have the backbone to walk away in such circumstances, they risk being puppets. The question for Ministers is whether they can be more than puppets in the Executive. I will leave it for Mr Kennedy to decide that on behalf of his colleagues.

Declan O'Loan (Social Democratic and Labour Party, North Antrim)

The Member speaks in a very principled way and, indeed, almost claims that the Alliance Party is the only principled party in the Assembly. She has spoken very nobly about how neither she nor her party has any interest in who becomes the Minister of justice and says that the Alliance Party is concerned only with the outcomes from our having a Department of justice. The Alliance Party was prominent in describing itself as “the party of opposition”. Indeed, it was the opposition in the Assembly for many months. When Bills were debated, the Alliance Party was assiduous in proposing amendments and discussing them at great length.

However, it is noticeable that the Alliance Party has not proposed an amendment today. The Member has not used the word “opposition” at all and has described her party as being “outside the Executive”. A reasonable person might conclude that her position is less principled than before and that she and her party may have a vested interest in taking the stance that they are taking.

David McClarty (UUP, East Londonderry)

Order. Some private conversations are being conducted in the Chamber, and that is very distracting for me, not to mention for the Member who is on his or her feet. If Members wish to carry on their private conversations, I ask that they do so in the Lobbies or elsewhere in the Building. I also remind Members that interventions should be short and sharp.

Naomi Long (Alliance, Belfast East)

Thank you, Mr Deputy Speaker. I appreciate both of those points. I will be clear about the issue that Mr O’Loan raised: I said that we had no selfish interest. I also said that we were less interested in who the Minister was and which party he or she came from than what they do. That is a principled position. If Mr O’Loan is asking me, as a politician and a member of the Alliance Party, whether I aspire to be in government, the answer is yes. If that makes me unprincipled, what does it make any other party that sits in this Chamber? What would it make me, other than a fool, if I were to say that I did not aspire to be in government for my party? Of course political parties have aspirations to be in government, but not at any price. That is what gives principle to our position. If Mr O’Loan does not understand that, I am not sure that there is much that I can say to help him.

Mr O’Loan also talked about proposing amendments. We propose amendments to legislation as and when we feel that they are required. However, we have articulated an argument today to explain why, based on our principles, we are happy with the legislation, which represents a move away from a mechanistic approach to the nomination and appointment of Executive Ministers and towards an approach that we prefer. Regardless of the outcome in respect of the make-up of the Executive, we would prefer that that body be formed voluntarily. We believe that this is a move in that direction, and that is a principled position.

On the issue of opposition, I am not in the sad and unfortunate situation of being confused about my role in this House. I am outside the Executive and I am part of the opposition. However, it would serve the Member well to talk to his party about what its role is, because it seems to be confused: it holds seats at the Executive table, and acts as opposition in the House. That is a much more confused and less principled position than the one that my party has adopted.

In conclusion, Members will be glad to hear, there have been many political fixes on the road from 1998 to 2009. Some of those were designed by the SDLP and the Ulster Unionists and others by the DUP and Sinn Féin. Some have further entrenched division in this Assembly, some have reduced it, some have moved us forward, and some have made it much more difficult for us to achieve progress. Some of those fixes have been based on good politics and others, frankly, have not. That is the reality of the situation. My party will look at each situation on its merits. The Bill provides for a move away from a rigid, mechanistic method of power sharing and towards a situation in which cross-community consent becomes more embedded in how we form an Executive. The Alliance party believes that that is a good thing, and, therefore, we support clause 2.

The Bill moves us to a situation in which the Minister of justice will be from Northern Ireland. There will be difficult decisions ahead on finance and many other issues, but the person who makes those decisions will, when they need a police officer, call 999 and go to the same people as me and the people whom I represent. That is a step forward, not a step back. That is a welcome change, and, therefore, we will support the Bill and oppose the amendments.

Simon Hamilton (DUP, Strangford)

I am sure that there were some Members in the House to hear that Mrs Long was coming to a conclusion, Mr Deputy Speaker. Perhaps that has changed because you have called me to speak, but I will do my best to make a valuable contribution to the debate.

It is no secret that my party and I support the devolution of policing and justice. However, as we have made clear on many occasions, that requires community confidence. One element that helps to build community confidence is confidence in the institutions to which matters are devolved. That is why clause 2 is so important, not just to me and my party, but to the community that we represent.

During his lengthy contribution at the start of the debate, Mr Attwood talked about people needing to live in the political real world. He is not living in the real world if he believes that there is any other method of appointing a justice Minister that is capable of commanding community confidence in Northern Ireland — critically, unionist community confidence — other than that contained in clause 2.

In making a case for clause 2, I must stress that, as desirable as it may be for some of us, the Member who takes up the justice post, from whatever party they come, will not do so simply on the DUP’s say-so. The decision is not something that we wholly control. The Member who becomes Minister of justice must be able to command cross-community support in the Assembly.

I am sorry that the SDLP has such a slavish devotion to the principle of d’Hondt that, in its eyes, nothing else is feasible, viable or possible. However, as Mrs Long pointed out, there are ways other than d’Hondt by which we can get cross-community buy-in. I ask the same question that I did at Second Stage: how much more cross-community can we get than a clause and a method of appointment that requires support for an individual by a majority of Members on each side of the House? Somebody who can come through that test and command that support will surely also have wider support in the community.

As the First Minister, Mr Robinson, pointed out, the cross-community voting mechanism is used regularly in the House. We use it to appoint the Speaker and Deputy Speakers, and during the passage of Budget Bills. We can also invoke cross-community support mechanisms in the House if Members decide that a matter is critical. The point is that to have cross-community support for an individual, or any proposal in the House, is not so alien, so different or so abnormal. It is something that we do —

Declan O'Loan (Social Democratic and Labour Party, North Antrim)

Will the Member give way?

Simon Hamilton (DUP, Strangford)

Yes.

Declan O'Loan (Social Democratic and Labour Party, North Antrim)

I note that the Member said that there is no method other than cross-community support in the House that will secure community confidence. In particular, he said, “unionist community confidence”. Therefore, I take it that he is rejecting a continuation of d’Hondt, which would lead to the SDLP’s taking the new justice portfolio.

Will the Member make it absolutely clear that it was not mere rhetoric when his party leader, the First Minister, said that he would reject the SDLP nominee? Was the DUP taking a determined and fixed stance to reject an SDLP nominee for Minister in the Department of justice?

Simon Hamilton (DUP, Strangford)

I am not the first person to make the following point. Others have done so, but I will go as slowly as I can. I honestly do not think that the Member gets the point. The SDLP seems to have some sense of ownership of the justice position. If the SDLP were to get its desire, and if the position were subject to the d’Hondt mechanism, there would be absolutely no guarantee that the Member’s party would get it. However, we repeatedly hear that the SDLP is being deprived of the Ministry — that it is losing out.

That is not the case, because d’Hondt would be triggered for all Ministries, and it is highly unlikely that the eleventh pick would be the Department of justice. I would be very surprised if the Department were not chosen sooner.

Naomi Long (Alliance, Belfast East)

In his intervention, Mr O’Loan used an interesting phrase: “continuation of d’Hondt”. There appears to be some confusion in the SDLP, because Mr Hamilton was asked specifically about opposition to the SDLP’s holding the justice Ministry — not any Ministry or the eleventh Ministry, but the justice Ministry — under a “continuation of d’Hondt”. However, others in the SDLP are saying that they are happy for the eleventh Ministry to be any portfolio, not just the justice portfolio. There seems to be confusion, and I cannot understand what the problem really is.

Simon Hamilton (DUP, Strangford)

I concur with the Member. I am not sure whether the SDLP is upset about losing out on gaining the Department of justice or the Department for Employment and Learning, but it does not seem to register with that party that there cannot be a continuation of d’Hondt. D’Hondt does not work like that; it is a system that runs throughout. It is not possible to allocate 10 Departments and then go back for an eleventh; the process would have to begin again.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

I may be able to clear up the confusion on both sides of the Chamber. There is no confusion, because, looking at the Hansard report, we have been able to confirm that if the d’Hondt process were to be run, the SDLP would be entitled to the eleventh Ministry, whatever it may be. The critical issue, Mr Hamilton, is that —

David McClarty (UUP, East Londonderry)

Order. The Member should refer all his remarks through the Chair.

Alex Attwood (Social Democratic and Labour Party, Belfast West)

The critical point is that, regardless of whether the SDLP looked for the justice Ministry, on 8 July 2009, outside 10 Downing Street, on the record and in front of cameras, Mr Hamilton’s party leader, the First Minister, said “I’m going to veto” an SDLP nominee for justice Minister. There is no confusion, because the issue was put on the table by the leader of the DUP, the First Minister, independently of whether or not the SDLP was entitled to the justice Ministry. It was your party that said explicitly on the record that it would stop us.

Simon Hamilton (DUP, Strangford)

The Member has got very upset about that point, which reveals the truth behind it all. It is the loss of the chance to have the Department of justice in the hands of the SDLP that is at the core of everything that is going on today. It is not some high point of principle; it is the loss of that potential position for that party. Nobody from the Member’s party has been put forward, and, although I am not going to prejudge anything, whoever is ultimately selected to take on the Minister of justice post must be capable of commanding the support of both communities. As everyone knows, the position is of such critical importance and sensitivity that the person who is appointed to it must capable of commanding support from both sides of the community.

The Member quoted the First Minister — who I see is back in his place — but it is not only the First Minister who ruled out the SDLP for the Minister of justice role; the leader of the Ulster Unionist Party did so as well. In that respect, he is in good company. More than one unionist party is ruling out members of Mr Attwood’s party from taking the position. Community confidence is at the core of clause 2; it is absolutely critical that that confidence is there. In the past, my party has made it clear that it would not have confidence in Sinn Féin holding the post, and, although I have no particular insight into the mind of republicans, I am pretty sure that they are not too keen on any member of my party holding the position.

Martina Anderson (Sinn Féin, Foyle)

Do not take it personally.

Simon Hamilton (DUP, Strangford)

I certainly do not take it personally.

In that respect — and this is where I have some confusion about the SDLP’s opposition to clause 2 — this is not some sort of unionist utopia that is being put forward. It is not what only either unionists, republicans or nationalists want; it is what both sides in the Chamber want. That is the critical point; whoever is put forward must be capable of commanding support from both sides of the community.

As I said, some Members may be exhibiting a slavish devotion to one particular method, but we have to be much more innovative, and there are different ways to achieve community support. Given that we use cross-community votes in the Chamber on quite a few occasions, it is not a particularly original method. Consensus and inclusivity are at the core of clause 2, and, down through the years, the SDLP has preached ad infinitum that we must have consensus and be inclusive. Those principles are at the core of the clause, so I am confused about why the SDLP opposes its standing part of the Bill. It may not be its preferred option, but it must at least accept that it is an option for having consensus and inclusivity and for achieving cross-community support for whoever the justice Minister is.

I turn to the opposition to this clause from the unionist Benches. I do not want to go into an historical retrospective about what people have agreed to in the past. Others have not engaged in that, and I do not want to go down that path, unless provoked into doing so. I have to point out that the clause protects the interests of unionism. Their opposition comes from a concern that there is sensitivity in the unionist community about the position of a justice Minister. Emotions run high, and there is great concern about who might take that position. That is why those Members have stated their opposition, notwithstanding things said and done down through the years and in the not too distant past.

I ask why they oppose the clause, when it protects the interests of unionism and allows unionists a clear say on who holds the very sensitive position of Minister of justice. No other option in legislation available to the Assembly offers the protection offered by clause 2. Clause 2 ensures that political unionism has a say over who holds that position; that is something on which those Members should reflect. As I mentioned, they said recently that they oppose both Sinn Féin and the SDLP holding that position. This goes back to the point about the rerunning of the d’Hondt system. No other system protects that position and ensures that certain members of certain parties do not hold it. I ask those Members to reflect on that in their opposition to this clause and their support for the SDLP’s proposal. Clause 2, as it stands, protects the interests of unionism that the DUP has espoused and which the Ulster Unionist Party has latterly come around to espousing.

Danny Kennedy (UUP, Newry and Armagh)

I am grateful to the Member for giving way. Does he understand that one of our primary objections is that the institution of the Executive was formed on the basis of the d’Hondt system and that implies that that system should be used to choose Ministers during this mandate?

Likewise, will the Member concede that the Alliance Party, in its current strength, is not entitled under the d’Hondt system, as of right, to a Ministry? However, a convenient agreement is being hatched, which is being labelled “cross-community support”, to enable the Alliance Party to expect that that Ministry will be given to its charge.

Simon Hamilton (DUP, Strangford)

The d’Hondt system may well have been the mechanism used at the start. However, I would have thought that the Member would agree with my point about the sensitivity of the office of a Minister of justice — indeed, a first Minister of justice — and that he would agree with the position outlined in clause 2 that cross-community support is essential.

The Member may be mathematically correct that the Alliance Party has not the strength of numbers to have the right to a Department according to the d’Hondt system as it is currently constituted. However, I suggest that that is not the issue at hand: rather, it is the need to have confidence on a cross-community basis in the person appointed Minister of justice. I would have thought that the Member would agree with me on that.

Stephen Farry (Alliance, North Down)

I am grateful to the Member for giving way. This is not about the Alliance Party; it is about a new Department and the mechanism of election. In today’s debate, the Alliance Party is judging the issue on its merits. It is not about our party.

Does the Member recognise that, with respect to size of mandates, it is commonplace around the world for parties that are smaller than the Alliance Party in terms of seats in the legislature and support in elections to be in government legitimately? South of the border, there is the recent example of the Progressive Democrats and, at present, the Green Party, both of which have proportionately smaller mandates than the Alliance Party but play a full and active part in voluntary coalition Governments.

Simon Hamilton (DUP, Strangford)

The Member has made a very valid point. In other democracies not too far from here, where coalition Governments are the norm, parties very much smaller than the Alliance Party regularly form part of the Government and regularly punch well above their weight.

I say to Mr Kennedy that this is not a point about one particular party; it is about having a system in place that commands community support. Obviously, we on these Benches are keen to ensure that there is unionist confidence in any system that appoints a Minister of justice. I ask Mr Kennedy and his party to reflect again on how any of the other available systems could command cross-community support.

Peter Robinson (DUP, Belfast East)

The Member was in the process of making the key point when he was interrupted. That key point is that a future Department of justice will have responsibility for the most sensitive life and death issues that affect our community.

If the SDLP were to achieve the post of Minister of justice using the d’Hondt system, it would mean that that Minister would command less than 15% of the support of the Assembly. It would also depend on a SDLP Minister being able to gain the support of all of his or her colleagues, and that is unlikely. There is a requirement in the Department of Justice Bill for the person selected as Minister of justice to have the support of more than 50% of both sections of the community through the designation system.

Simon Hamilton (DUP, Strangford)

That is absolutely correct. Perhaps it would be better for the SDLP to wait until its leadership contest is decided before it nominates someone as Minister of justice.

The issues that will be dealt with by a future Minister of justice are so sensitive that a higher threshold for the post is required. Therefore, to subject the post to the vagaries of the d’Hondt process, as the UUP would do, despite acknowledging those sensitivities, which, I think, they now do, is something that they need to reflect on. Opposing for the sake of opposing or doing so for spurious reasons such as timing — there are no timings involved, which will be demonstrated when the second set of amendments is proposed — is wrong. The UUP must reflect on its opposition, which is not particularly principled, is entirely manufactured, and does not represent the position that it has espoused in recent times or indeed that has been espoused by the wider unionist community.

I want to move on —

Dominic Bradley (Social Democratic and Labour Party, Newry and Armagh)

Will the Member give way?

Simon Hamilton (DUP, Strangford)

I have been trying to move on to my second set of points for some time, but I will give way to the Member.

Dominic Bradley (Social Democratic and Labour Party, Newry and Armagh)

Will the Member confirm explicitly what he has said implicitly: the cross-community mechanism has been chosen by the two main parties and his own party in particular to exclude a nationalist from the position of Minister of justice? In fact, the Member has said what the SDLP has said all along, and the message is that no nationalists need apply.

Simon Hamilton (DUP, Strangford)

I have allowed the Member to get his intra-nationalist warfare sound bite in, but I cannot see how, if he examines clause 2, he can conclude that its intention is to exclude anyone. Instead, it embodies inclusiveness and the need to have cross-community support for whoever is nominated. The point that the First Minister made was that whoever is selected will ultimately have the support of the majority of Members on the unionist and nationalist Benches. That is inclusiveness and consensus and exactly the type of principles that the Member and his party have been ramming down everyone else’s throat for the last number of years.

I will now move on to the other amendments tabled by Mr Attwood. Amendment Nos 2, 3 and 4 deal with the requirement for reporting and voting by the Assembly on what may or may not happen in May 2012. Having listened to Mr Attwood speaking about those amend­ments and using words such as “grave”, “acute” and “catastrophic” I was interested in the motivation behind the amendments. Were they motivated by some genuine concern about what may or may not happen after May 2012? I listened intently and with interest to what he said to find out whether he was genuinely concerned about what might happen or whether there was some other motivation. It did not take too long to see that there was another motivation, and it is not genuine concern about some catastrophic state of affairs in May 2012; it was about protecting a slavish devotion to d’Hondt and trying to protect the SDLP party position on the justice Ministry.

No one in the Assembly should be planning for failure. Times have genuinely changed when a member of the SDLP is more pessimistic than me about the future. We should not be saying that the world will end, things will collapse, and it will all be doom and gloom and catastrophe in May 2012. No one believes that, if the Assembly cannot agree a continuation to the current arrangements or even an alternative set of arrangements, policing and justice will suddenly just end. Halloween is not too far behind us, but Mrs Long mentioned a nightmarish scenario in which prison doors would be opened — I thought that had happened before; a recurring nightmare, perhaps — police would not be on the streets or have any resources and the justice system would grind to a halt. That sort of nightmare scenario, implied by Mr Attwood, is not at all realistic.

I concur with others who said that the argument that was put forward was based on twisted logic. We are facing what Mr Attwood regards as a catastrophic set of affairs or there is a fallback position. We cannot have both: it is one or t’other. However, that is the twisted logic that was put forward in support of the amendments. I am not confused; my interpretation of the section of the Northern Ireland Act 2009 that deals with this issue is that the Department, having been created, would dissolve unless the Assembly passes a motion to sustain it, or —

Mark Durkan (Social Democratic and Labour Party, Foyle)

Is the Member saying that there is no fallback? Is he supporting the legislation on the basis that there is no fallback?