Where now for the Department of Justice ?

As I write, the Alliance Party’s council, the representative body which appoints and holds to account the party Executive (among other functions), is meeting to discuss the party’s decision not to field a candidate for the role of the Minister of Justice. I have to confess that, having written by my earlier article on this matter as the heat from the election was beginning to die down, I was reconciling myself to the possibility that the party would have some success in persuading the DUP and SF to grant it some concessions allowing it to take the role. Alliance are do-ers and risk-takers.  I started this week thinking there was a 50/50 chance but as time went on I thought, perhaps, that the party would decide to take the risk once again this time.

But I feel no particular sense of satisfaction hearing the news that the party has decided to turn the role down. I know that the party wanted to be in government, as all democrats do, and were prepared to take the pain associated with the need to keep Northern Ireland moving forward in some fashion.

However, the simple reality appears to be that the party made a few requests from the two largest parties. Based on the details that appear public, these requests were on matters that spoke to both the Alliance agenda and the long term interests of Northern Ireland, with plenty of room left for wriggling, to make agreement as simple as possible. These requests were straightforward, pragmatic, and well within the power of the two parties to deliver. When the DUP/SF turned down even these modest concessions, the party was clearly not in a position to grant anything in return.

The body language coming from the two large parties was, at best, ambivalent, and at worst abusive. Martin McGuinness admonished Alliance and the SDLP to make their minds up. The Secretary of State was belatedly wheeled out to cajole Alliance with threats of elections. And, in a bizarre series of desperate acts, OFMDFM staged desperate last-ditch talks with the Green Party and Claire Sugden which were less to do with identifying alternative candidates and rather more to do with a haphazard, and rather slapdash, effort to try to squeeze Alliance. These silly stunts belie the total absence of any effort to establish a partnership, and an abandonment of any prospect of building a working relationship based on mutual respect.

The obvious conclusion arising from all of this is that the DUP/SF never had any particular interest in working with Alliance in government – or the SDLP or UUP, for that matter. Any desire they might have had was, and is, outweighed by their refusal to take any kind of political risk. They wanted Alliance to go back to their voters and members to provide political cover for the new Executive’s agenda of austerity, continuing division and non-progress. They refused to grant it anything to help it do so, because they are unwilling, in return, to go back to their own supporters to risk ending the abuse of the petition of concern (which, in this assembly, would lead to the legalisation of marriage equality and possibly some modest progress on abortion reform), or to arrive at an agreement on victims and paramilitaries, or to invest in higher education. Why would Alliance risk alienating its base when these parties refuse to risk theirs ?

Despite Martin McGuinness’ dire predictions of crisis, however, there are a number of avenues open to the DUP and SF. The first, and most obvious, option is for them to agree to appoint another minister, be it from their own ranks or from another party. Given that the “crisis” flows in the first instance from their own inability to trust each other, this is unlikely to happen. It is a situation that makes an embarrassing mockery of McGuinness’ pre-election claims that he had a good working relationship with successive DUP leaders.

The next option is to use one of the alternatives permitted by Section 21A of the amended Northern Ireland Act 1998. This section sets out the powers of the Assembly to enact provisions governing a new Department of Justice. The Assembly, in the Department of Justice Act (Northern Ireland) 2010, opted to use the provisions from paragraph 3 to have the Minister nominated by an MLA and approved by a cross community vote in the Assembly.

In addition, it’s possible for the Department to be in the charge of two ministers acting jointly, or in the charge of a minister supported by a junior minister, with the minister and the junior minister rotating the roles between each other. Given that this is how the DUP and SF operate OFMDFM, this seems like a likely option, although the DUP are known to be unhappy with double-header departments as they make decision making inevitably more difficult.

Paragraph 7 permits the Secretary of State to make these changes via Order in Council in the event that the Assembly cannot act quickly enough. However, the Secretary of State does not appear to have the power to dissolve the existing department, and it is not clear if the power exists to modify the department that is presently constituted. If so, the Assembly would still have to dissolve the existing Department of Justice using it’s Section 21 powers.

When checking through the legislation I received a tip-off from a little (water-based) bird with an impeccable knowledge of the Northern Ireland Act. The legislation in Section 21A does not specifically say that the Minister of Justice must be a member of the assembly. Where the legislation around the d’Hondt procedure, in Section 18, specifically stipulates:

The nominating officer of the political party for which the formula in subsection (5) gives the highest figure may select a Ministerial office and nominate a person to hold it who is a member of the party and of the Assembly.

.. the legislation enacted by the Assembly under the provisions of Section 21A says, more simply :

2—(1) The Department of Justice is to be in the charge of a Northern Ireland Minister appointed by virtue of a nomination—

(a)made by one or more members of the Assembly; and

(b)approved by a resolution of the Assembly passed with the support of—

(i)a majority of the members voting on the motion for the resolution,

(ii)a majority of the designated Nationalists voting, and

(iii)a majority of the designated Unionists voting.

(2) Expressions used in subsection (1) and in the Northern Ireland Act 1998 have the same meanings in that subsection as in that Act.

It is not clear whether this is an error of omission, or whether it was intentional. Nonetheless, one interpretation of this legislation is that the assembly can appoint anyone who is nominated by an MLA. I can find nothing in any other part of the 1998 Act that would prevent a non-MLA from entering the chamber and accepting the position.

Could the next Justice Minister be John Larkin or Barra McGrory ? It’s unlikely, but I’m sure that all possible options are being considered to appoint a minister and avoid another assembly election.

Update;

In today’s News Letter the Executive Office have clarified two aspects :
 
1. The Justice Minister will be appointed under the 2010 Act. This means that there will be a single Minister. 
 
2. Schedule 4(A) requires that the Minister is an MLA, so the suggestions that the Minister may not be an MLA are false. Section 3D(4) says : 
 

“One or more members of the Assembly may nominate another member of the Assembly to hold the relevant Ministerial office.”

 
The Assembly retains the power to enact legislation to appoint Ministers differently, but this clarification from the Executive suggests that the DUP and Sinn Féin have ruled out this option, and a single MLA will be appointed. Both the DUP and SF have since confirmed that on Wednesday an Executive including a Justice Minister will be appointed.

 

 

 

  • Frank Sinistra

    Brendan,

    Very interesting. Interesting that only one of Alliance’s reasons for declining the Ministry has anything to do with anything remotely related to to the role of that Ministry.

    So…Alliance thinks it can have a bigger role in removing paramilitaries once and for all by having no input in the DoJ as opposed to leading it?

    Or… finally Alliance have engaged in selfish electoralism watching over their shoulders at SDLP and UUP decisions just praying to God the crisis they may be contributing to doesn’t result in escalation and real problems for society beyond their limited vote base?

    Though great to see the ‘born agains’ that wouldn’t risk broader society finally sidelined by party pragmatists that would risk fucking over everyone.

    Proper nasty politics at last from APNI

  • Pasty2012

    Arlene was very forthright in her “WE” ran in the elections to be in Government unlike other party’s – so why would it not be possible for the DUP and Sinn Fein to appoint a “Joint” Minister to run the Department for Justice in order to ensure that there will be an Executive meeting on Thursday and be able to move forward.
    At the end of the day it is clear that both the UUP and SDLP want to leave the impending public outcry against those implementing the Austerity measures to the DUP and Sinn Fein, even though the UUP were all for implementing them in the first place. They both clearly see the advantage of not being in Government when the people start to feel the hurt in their pockets when the benefit cuts start big time – that is both Working and Non Working Benefit cuts and there is a lot of people in North getting Working Benefits due to the low wages here.

  • Kevin Breslin

    Oliver McMullan becomes Independent McMullan again, and takes Justice.

    No DUP Justice minister, No Sinn Féin Justice Minister … sorted!

  • fralycis

    In fact, I completely disagree with your idea of Alliance playing ‘proper nasty politics’ and endorse Seamus Close’s view on this (former deputy leader).
    To broadly paraphrase him from his recent Nolan interview:
    1) Alliance did NOT get the mandate from the electorate to enter the executive once again.Their tally of votes have been on a general trend downwards and didn’t qualify ‘by right’ for a ministry.
    2) DUP and SF received an overwhelming mandate from the electorate, winning 66/108 seats (61%) and is more than sufficient to form and govern in a two-party executive. It is clear that (particularly) the SDLP, UUP and APNI did not receive this endorsement from the people. It does not matter why this is the case.
    3) DUP and SF in his words ‘can trust each other with the education of our kids, the health of our people’ etc etc so this party to party public partnership relationship can only be described as farcical if the relationship only goes skin-deep (i.e. they don’t trust each other to take the Justice portfolio). This is a huge flaw in the system, 18 years after the GFA! Pandering to their individual voter bases seems the order of the day.

    In short, expect the ‘nasty politics’ to now fall in the DUP-SF court (even if only articulated behind closed doors). This is NOT Alliance’s problem to deal with (this time). If this was a game of poker, Alliance just showed a flush and laid it on the table. DUP and SF had a pair each and are simply brushing away the fact that an Alliance MLA (designating as Other) is the easiest and most convenient option.
    I hope they realise later down the line that they should have done as much as they could to accommodate Alliance’s proposals and simply get this tough crease on the shirt ironed out before it gets messier…

  • Zig70

    I’m annoyed that SF were going to tolerate the DUP’s refusal to let them take the justice ministry. Alliance lost nationalist support by propping up the Intolerance. D’hont should run fairly the whole way through. Though, if SF weren’t having to look to the southern electorates expectations of maintaining some agreement in Stormont, they would be reading the walls and looking for an exit.

  • Brendan Heading

    Frank,

    The decision to nominate a Justice Minister is a decision to form part of the Executive team as a whole. You have to, on some level, be able to accept the programme for government and the agenda of the government as a whole.

    Secondly, it’s pretty common in other countries where small parties nominate members to coalitions where those minor parties will seek concessions and seek to influence the direct of the administration as a whole.

    It should come as a surprise to nobody that political parties are in the business of winning elections and obtaining things for their voters. I don’t see how any of this is “nasty” – it’s what happens in the real world all the time. No political party is compelled to commit electoral suicide to save the blushes of other parties which refuse to make any moves at all.

  • Frank Sinistra

    Brendan, the Justice Ministry is not a true Executive role. It is not awarded by the normal rules of our bastarised ‘democracy’. It stands outside even our limited grasp of normal governance. It exists as a demonstration of sectarianism. It is not a true PfG issue. It’s managing hate and distrust openly. For Alliance to decline and precipitation crisis when it is a single element of their 5 demands seems to indicate a party posturing and a new risk willingness.

    A successful outcome from DUP/SF means the ‘middle’ party is negated for..well..until they hit 15+ seats. So forever. They sort this you ain’t ever needed

  • Brendan Heading

    For Alliance to decline and precipitation crisis when it is a single element of their 5 demands seems to indicate a party posturing and a new risk willingness.

    The crisis exists only because the DUP and SF cannot persuade anyone to join them in government. That situation was created no more by Alliance than by Claire Sugden or Steven Agnew.

    A successful outcome from DUP/SF means the ‘middle’ party is negated for..well..until they hit 15+ seats. So forever. They sort this you ain’t ever needed

    If you want to place a bet on the DUP/SF “sorting” things to negate the middle party, more power to you.

  • Frank Sinistra

    Nonsense.

    No matter how little influence Alliance, SDLP or UUP had with Ministers last time they have ensured the DUP and SF will have more this time.

    That’s a nasty political decision.

    They have removed limited input in the hope no influence at all but more freedom to complain brings benefits in future elections.

    Proper politics. Nasty

  • Frank Sinistra

    Negated as in they’ll find a way through this and as a result Alliance will only see office as of right. And who can really see that?

  • Brendan Heading

    ah, I see your point now. Yes, I think it is well understood that once the DUP and SF sew up a deal to fix Justice, that deal will stick, much as it did with the Speaker job which everyone once thought would always go to Alliance. Alliance will probably never see the Justice ministry again for as long as the present political landscape remains as it is.

    The alternative was for Alliance to go into government, be their patsy while the two parties force through more austerity and more cutbacks, and face the electorate in five years time with nothing accomplished while the UUP/SDLP/Greens/PBP called out the party as part of the coalition that caused all the trouble.

  • Gopher

    Claire Sugdens in a strong position if she is sensible and politically realistic. A dual carriageway between Coleraine and Derry is infinitely more practical than most demands. People dont sit in traffic worrying about a petition of concern or Gay marriage.

    The Greens are in not such a strong position unfortunately, for people actually expect them to reform abortion do something about Gay marriage and save the planet. Sugden on the other hand can be a proper politician. Westminster would also be good for a tap for any infrastructure project in East Londonderry if it saved the assembly.

  • Frank Sinistra

    So we have 5 years where 3 parties have decided the best way to reduce the sick DUP/SF sectarian carve up is to give them more pie to carve in the hope of dividends in the next election. As I said this is proper nasty politics. Let your electorate suffer more than they need to in the hope an election in 5 years time will be better.

    Sorry. I want bread today! Not the election after next! And all 3 had the chance to do a little tiny bit more good in office than from Nolan’s studio. They picked Nolan, fuck you and fighting an election 5 yrs away

  • fralycis

    Again, in any other democracy, a two-party executive coalition with 61% of the total seats has and deserves the fullest of mandates to govern by themselves.
    An opposition (of any kind) is healthy and the electorate will punish the UUP, SDLP, APNI further if they just see opposition as simply a platform ‘to complain’. Remember that DUP and SF will have a full three years before the 2019 local elections to be able to deliver on their manifesto commitments/Fresh Start/PfG (and their shared similarities RE health, jobs, corporation tax etc) should show they are fit to govern by themselves.

    I finish by saying that power sharing executives by their very nature must honour and respect every party that signs up to that executive. You could say perhaps that UUP/SDLP’s previous constant sniping from the sidelines whilst taking Executive seats is playing ‘nasty politics’. Equally, DUP and SF have played nasty politics with the Alliance Party over the past 5 years treating Stephen Farry’s DEL department with a condescending outlook. There’s no point offering Alliance the Justice Department if they cannot bring about enough positive change, as David Ford could have done more had he not had to walk the OFMDFM tightrope strangling the other parties into a lower tier.
    Let’s stop playing politics in NI and get effective devolution (at last) brought about in Stormont.

  • Frank Sinistra

    So we have 5 years where 3 parties have decided the best way to reduce the sick DUP/SF sectarian carve up is to give them more pie to carve in the hope of dividends in the next election. As I said this is proper nasty politics. Let your electorate suffer more than they need to in the hope an election in 5 years time will be better.

    Sorry. I want bread today! Not the election after next! And all 3 had the chance to do a little tiny bit more good in office than from Nolan’s studio. They picked Nolan, f you and fighting an election 5 yrs away

  • Brendan Heading

    er, okay.

  • Gerry Lynch

    But the Greens, surely, don’t like building roads if there is a reasonable alternative. Between Coleraine and Derry there is a reasonable policy of upgrading one of the world’s most scenic railway lines.

  • Gerry Lynch

    Good call from Alliance. They may now get last minute concessions allowing them to take the Justice Ministry (although it would be 11th hour stuff) but one has to be prepared to walk away to get anything meaningful in negotiations, and not just in NI. Ultimately the DUP and Sinn Féin got a mandate, well understood by their voters, of over 50% to govern together. So, they should get on with it.

  • aa o’cearra

    Through their ‘negotiating’ stance on the PfG and formation of the executive, we are getting a very small glimpse on what it must be like for the other parties working with the DUP/SF behind closed doors in the executive proper. That being the case, I for one can’t criticise any party that decides to opt for opposition. The DUP/SF are combining their ‘forces’ and acting like they won a first-past-the-post election, osit.

  • Gopher

    That is what im saying the Greens have to get controversial stuff like abortion, a green agenda and and gay marriage. An independent only has to do what is best for her constituents meaning Sugden if she has sense will be the easiest to deal with. One can never have too many infrastructure projects.

  • WolfeTone1798

    To offer the job to Miss Sugden would be a disgrace. It would undermine public faith in the integrity of the Executive particularly given the sensitive nature of that ministry.

    I have no truck with her personally nor her affiliations. But, let’s get real. This is a 29 year old 1 term MLA with no ministerial or legal experience.

    I hope that DUP and SF were speaking to her and Agnew simply to make an unsubtle point to Alliance.

    These shenanigans demean the office. However the ultimate appointment of Miss Sugden would not vote well for the apparent new dispensation

  • WolfeTone1798

    *not bode well for the apparent new dispensation

  • “One can never have too many infrastructure projects.”
    Actually, you can. Especially if there are other spending priorities than building roads where perfectly viable alternative means of transport exist.

  • Gopher

    I’m guessing the good people of East Londonderry would not be adverse to a Dual Carriageway, I’m sure they are not overwhelmed with them presently. I am also sure Sugden might want to get elected again in a redrawn 5 seat constituency.. What better way than leave a monument that brings jobs and investment to the North West.. If her candidacy is accepted for Justice I wish her well in negotiating a fair price for saving the assembly.

  • chrisjones2

    Are you suggesting she should be bought? Or that the Justice Ministry is up for sale?

    Better that the DUP let the Shinners have it – if they have someone who can pass the vetting

  • chrisjones2

    61% of seats – bit how many of them bother to turn up every day

    The DUP in particular will have to whip hard to get them in and avoid ambuses

  • chrisjones2

    From their point of view they had no real power and little influence so they have lost almost nothing

    What they have gained is reflected in how scared the DUP and SF are that they are now exposed

  • Gopher

    Nope I’m suggesting that if she agrees to take the onerous task of Justice Minister a position that all the other parties for one reason or another are incapable of fulfilling then the good people that had the foresight to elect her should have their wisdom acknowledged.

  • Glenn

    Can’t see why the DUP would refuse to have a shinner/provo justice minister?

    Imagine it a shinner/provo justice minister, the temptation to drive their sectarian agenda in this office will be to tempting to pass up, and they can screw up this ministry like they have with all the others they have been in charge of.

    The thought of a shinner/provo justice minister sending other Irish republican terrorists and other provos terrorists to gaol would be worth watching. It would mark the shinners/provos arrival as a full member of the British establishment. Sinn Fein/IRA justice minister sending their friends in the provos other Irish republicans to gaol, how British is that, the traitors.

  • Gopher

    Because the “I don’t want Gerry Kelly as Justice Minister” campaign is still fresh enough in the mind to be brought to the surface by the UUP. Electoral suicide.

  • fralycis

    Very true regarding the 61%’s attendance, but funny that all 66 will turn up without hesitation (whipping involves in some cases, yes…) when a knife-edge voting day comes around.
    The DUP and SF are far too savvy to lose a publicised vote, whether they have cover or not (as in Fresh Start’s budgets).

    They know that they have some potential wriggle room if needs be to still pass crucial votes through if they can both agree on it (even for a hypothetical 55-53 win, 6 or 7 dissenters/non attenders/Speakers’ lack of a vote (highly unprecedented for the big two parties) would be tolerable).

    Whether they have cover or not, it’s up to the UUP/SDLP/APNI to prove why they are a better fit for government in 2021, as the two big parties will set out to dominate 5 seat constituencies.

  • murdockp

    A technocrat minister with a background in the law such as John Larkin or Judith Gillespie that can deal with this folio effectively is what is required.

    Giving this to a 29 year old career politician is a bit like asking a one armed man (or woman) to fight a hungry lion with a pen knife.

  • Msiegnaro

    I don’t think Sugden is a suitable candidate, in fact she appears very opportunistic and seems to be more content on personal glory. I would suggest politically wise Sugden has been mediocre and if it wasn’t for UUP disarray she would not have held her seat. It would be a travesty of democracy for someone with so few votes to hold this influential position.

  • Msiegnaro

    Politically Sugden is mediocre and on the grand scheme of thing is completely opportunistic, not the right choice.

  • Gopher

    It’s why we have elections, if a technocrat wants to put themselves before the electorate and be returned then sure they should be considered.

  • murdockp

    In progressive counties like Germany you cannot hold ministerial office unless you are competent in the folio. Only in NI can some one with literally no work experience be given the controls of large departments like they are here.

    Even in the US the land of the free, technocrats are proposed and elected to do important jobs such as chairing the federal reserve etc.
    If our ministers on our behalf vote for a technocrat, trusted by all parties who is above all else competent, then I would call this progressive politics. It is a difficult folio.

    But for those of you who crave the politics and power, shame on me for even suggesting it,

  • Msiegnaro

    Agreed, lets be honest there is really only one person for the role.

  • Gopher

    Those technocrats did a great job with the Federal reserve!!!!!!! I believe we have a Civil service in the UK that supports the nessecary minister I also believe this system has worked well for a good few centuries. If our ministers by which you mean the DUP and SF vote for a technocrat outside of the assembly it will become beyond a joke and will probably never recover credibility.

  • Msiegnaro

    Who in Alliance is qualified to do this role? Ford wasn’t exactly great was he?!

  • murdockp

    and Sinn Fein or DUP taking justice isn’t comical? or ironic?

  • Gopher

    It’s what they are elected to do, the fact we have a Mexican stand off between SF, DUP and a yet to be decided other party is rather amusing. It’s not the most inviting job description “Wanted third party to Mexican standoff, Pro Abortion, members of British and Irish establishment and radicals need not apply. Designated “Others” welcome but in the event of none forthcoming elected, fluffy small u unionists might be a bridge too far”

  • hugh mccloy

    They wont want to face an election after that round of welfare letters, so they will fudge someone into it to keep the facade going.

  • Interesting to hear views about alliance choosing to criticise in the media rather than be in government. Will they have any right to be invited on to nolan and other political programmes? They will be the third party of opposition. Basically what the dup or lib dems are to the westminster parliament, and there isnt much to be seen of them on marr and question time, other than very infrequent appearences which their stature dictates.

    The bbc and others will need to re think who comes on these shows. Hardly fair thay they now get the same sort of exposure as the likes of the dup who are actually in government with nearly 5 times the votes and seats of alliance.

  • Gerry Lynch

    Ah, that makes sense. Sorry for being a bit slow on the uptake.

  • Brendan Heading

    Jim Allister has one seat, fewer votes than Alliance, is not in the Executive and is regularly on Nolan, Talkback and all the rest.

    However, for the purposes of election time debates etc – yes I think Alliance will find themselves offstage once more.

  • Brendan Heading

    It was interesting to note that Steven Agnew’s list of red lines in exchange for being justice minister made no mention at all of environmental issues.

  • hugh mccloy

    sure the big parties go running away from nolan when things get real

  • Brendan Heading

    It’s redundant pointing out that an MLA is mediocre. The entire Assembly is a sea of mediocrity, with a handful of exceptions. That said, I think you underestimate what’s involved in holding a seat.

    Peter Mandelson was appointed Secretary of State for Business, Innovation and Skills with precisely zero votes – they gave him the job by making him a peer. There are plenty of precedents in British politics for a government minister to have no mandate. This, by itself, is not a reason why Sugden should not have the job.

  • Gopher

    I dont believe Alliance will be left out because the UUP and SDLP need their 8 votes. Alliance are easier to deal with than Allister, Greens and PBP. I think the centre has a problem in that it is getting very crowded and for opposition to work the UUP and SDLP both have to gravitate to it. The only slack in the electoral system lies in the centre and I remain unconvinced that the parties will individually be able to tap into it.

  • Brendan Heading

    The contributor above was complaining that Alliance get too much media coverage relative to the size of their vote. Inevitably Alliance will be in the papers less as a consequence of not occupying any ministerial office.

    Regarding events in the assembly, beware of this “Alliance are easy to deal with” thing. Earlier this week several commentators were absolutely certain that Alliance would end up in Justice because they’ll pliable and will take whatever scraps they’re given.

    In any case, it will seldom matter what way the opposition parties vote. When it comes to Executive business, the DUP and SF have enough votes between them to easily push through whatever they like. Both of them aggressively whip their MLAs and both parties retain undated resignation letters from each MLA which they use to maintain discipline. There will be no rebellion from either party and as such no embarrassing defeats inflicted by the opposition on the Assembly floor.

  • Gopher

    Alliance I imagine won’t have the same hang ups as Greens, Jim Allister and PBP. If the opposition follow narrow party interest off course the combined might of the DUP and SF will win out every time. The test is whether they will be able to isolate SF as they have the combined numbers and embarrass them by having the DUP to bail them out. Essentially they have to get both on ground together they won’t be comfortable electorally. It will be interesting if Eastwood holds his nerve when SF come asking for that POC

  • Brendan Heading

    I agree with you.

    In fairness to the SDLP they have held their nerve in the past on some occasions when controversial PoC decisions had to be made.

  • robertianwilliams

    Justice should be in the hands of Westminster..to ensure fairness.