“any necessary steps..”

Several reports pick up on the UUP leader, Reg Empey’s criticism of a letter from the Secretary of State for Wales, etc, Peter Hain, to the transitional assembly’s sub-group on Justice and Policing. While the Belfast Telegraph say they have seen the letter there is only a short paragraph quoted from it. Reg Empey highlights the content of the letter, correctly, as “a complete negation of the democratic process” before focussing his attention on the DUP. But he’d be better keeping his focus on that “negation of the democratic process” as the proposed appointment of ministers and devolving of powers without agreement would be extremely difficult, if not impossible, to implement. Update Thanks to Gonzo, via the UUP, the leaked letter is online[.doc file]According to the reports

Sir Reg Empey said the proposal “trampled on the democratic process”.

“The government has given Sinn Fein an undertaking that there will be devolution of policing and justice powers by 2008 and if there is any nonsense between the parties the government will step in and make the appointments themselves,” he said.

“It is a complete negation of the democratic process, but my primary point is that the DUP were saying devolution of policing and justice will not happen in a political lifetime but it is clear from that letter that it will happen.”

While, from the quoted letter by Peter Hain

Mr Hain’s letter said: “If there was no successful selection of ministers within the timeframe set out by St Andrews the government would take any necessary steps to ensure that the timescale for devolution was not delayed.[added emphasis]

“This includes the appointment of a justice minister.”

The letter also says that the ministers should be appointed by a cross-community vote in the assembly.

In the long-term only one minister will have responsibility for policing and justice, but the government views a deputy minister as necessary in the short-term.

How exactly the Secretary of State would appoint a minister to an Executive, even to a transitional Ministry, and expect an MLA to hold that office in the absence of support within the assembly isn’t detailed.

It’s also not exactly clear from the quotes that Peter Hain has explicitly threatened to devolve policing and justice by May 2008 in the absence of agreement within the assembly, and a less charitable reading of Reg Empey’s comments might suggest that there was a deliberate attempt to misinterpret, but we’ll assume for the moment that Peter Hain does intend that reading.

We’ve already had some of the details of the government’s proposals for the ministry outlined[subs req]

Under a formula devised in the recent talks, a policing model was created based on a proposal tabled by the DUP before Christmas. It means that a department of justice will be established with a minister with full cabinet powers and a junior minister, most likely from the Ulster Unionist Party and the SDLP.

These ministers will be elected on the so-called “50/50/50” system whereby the ministers must first win at least 50 per cent support of the Assembly members to include 50 per cent support of unionists and 50 per cent support of nationalist members.

However, there is still uncertainty over the time frame for transferring policing and justice powers to the Stormont Executive. The governments believe this formula makes it possible to establish the department by May 2008, as envisaged in the St Andrews Agreement. They hope that Sinn Féin, by initiating this move on policing, will in turn prompt the DUP to soften its refusal to make any commitments on a time frame.

And from the Belfast Telegraph report

Under the Government model, at least before the transfer of powers takes place, the Ministerial positions would effectively fall to Ulster Unionists and the SDLP until replaced by an elected Minister.

By March 27, the newly-elected Assembly is to appoint a Justice Minister and Deputy and then agree a motion necessary to set in process the devolution of justice functions. But the Hain model continued: “If there was no successful election within the timeframe set out at St Andrews, the Government would take any necessary steps to ensure that the timescale for devolution was not delayed.

“This includes the appointment of a Justice Minister and, to ensure cross-community representation, a Deputy Justice Minister.”

Mr Hain said he hoped the sub- group comprised of the four main parties, due to meet again next week, could reach agreement.

But he added: “If that agreement cannot be achieved, however, the model as described… is the basis on which I will legislate to provide a means of selecting ministers…”

The Northern Ireland Office last night said that “contingencies” had to be built in but, with the parties on the brink of a breakthrough on policing, emphasised it believed its model will work.

But it’s worth looking at the current legislation, including the NI (St Anrdews) Act, to see what Hain’s threatened imposition would entail.

The mechanism for requesting the devolution of powers on policing and justice is set out in the NI (Miscellaneous Provisions) Act and, as the NIO minister David Hanson stated in the Commons,

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

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

When we come to the NI (St Andrews) Act we get the target date and what the Secretary of State will do if, by March 2008, there is not agreement to devolve those powers.

18 Report on progress towards devolution of policing and justice matters

(1) The Northern Ireland Assembly must make a report to the Secretary of State before 27 March 2008—
(a) as to the preparations that the Assembly has made, and intends to make, having regard to paragraph 7 of the St Andrews Agreement, for or in connection with policing and justice matters ceasing to be reserved matters;
(b) as to which matters are likely to be the subject of any request under section 4(2A) of the 1998 Act that policing and justice matters should cease to be reserved matters;
(c) containing an assessment of whether the Assembly is likely to make such a request before 1 May 2008.

(2) The Secretary of State must lay a copy of the report before each House of Parliament.

What the Secretary of State now appears to be saying is that if that point is reached he, or more likely another Secretary of State, will ignore everything that has been stated, and everything that is in the current legislation, and go ahead anyway.. and also appoint a minister.

As I said previously

..the Secretary of State may set a target date, and may hope to achieve that date, but the current mechanism for devolving powers on policing and justice already set out, in the NI (Miscellaneous Provisions) Act, grants both holders of the offices of First and Deputy First Ministers a veto on whether that goes ahead.

Unless the government is now going to say that, in circumstances where one of the parties holding those offices do not agree that the confidence within the community exists for the devolving of those powers by March 2008 – they are then going to force through devolving powers on policing and justice by May 2008 whatever happens between now and then, the target date remains only a target date and not a commitment.

While the current encumbent’s propensity for taking any step he deems necessary has been well documented there is, in reality, little chance of such a step being taken, never mind succeeding, without the confidence within the community existing.

As Peter Hain made clear just yesterday, devolving powers on policing and justice is dependent on the conditions.

“It has always been clear that none of the parties have discounted, providing the conditions are right, for May 2008 as a target date for the devolution of policing and justice,” he said.

That’s a target date, not a deadline.