When is “a constitutional nonsense” not “a constitutional nonsense”?

I was just going to update an earlier post, but the report of what the Secretary of State for Wales, etc, Peter Hain has now said – after telling the transitional assembly sub-group on policing and justice that imposing a justice minister on an Assembly, against the Assembly’s wishes, would be “a constitutional nonsense” – deserves a post of its own. According to the PA report, Peter Hain is now saying that

“This is a backstop, the overwhelming preference is to do this by consent under the agreed proceedings. If we get to the stage where this process is deadlocked, perhaps around May 2008, then you have to look for an alternative legislative vehicle.” Mr Hain added that the appointee could be “somebody from a party outside the Executive or from outside the Assembly”.

And that makes it less of a nonsense how?The report also has some exchanges of party views on the triple-lock mechanism on devolving policing and justice

Mr Kelly said there was a triple lock enshrined in the legislation for devolution involving the need for cross-community support.

“What there can`t be is a veto against moving the whole process forward. We can`t have a situation where any party could delay the transfer of policing and justice or, indeed, the moving ahead of any of the institutions.”

He accused the rival nationalist SDLP of agreeing to the so-called triple lock.

“How can anybody argue that the people of Ireland will see a justice ministry as irrelevant? Tell that to the families of the people bereaved through car crime, talk to the victims of child abuse whose relatives want more local power.”

DUP policing spokesman Ian Paisley Jnr said the minister had accepted that it would be a nonsense for anyone to impose an outside solution.

“The Secretary of State has accepted that timing (of devolution of policing and justice powers) relies upon unionist confidence and that will happen when republicans deliver. It is not about a date, this is about confidence.”

He added that the triple lock remained in place.

There’s a quote from NIO Minister David Hanson, speaking in a Commons debate, that’s worth recalling at this point

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]

And another reminder of what’s been mentioned before..

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  • Watcher

    Tuesday, January 09, 2007

    Sinn Fein’s national executive will meet on Saturday to discuss support for policing in Northern Ireland.
    After a meeting of senior party members in Dublin today, chief negotiator Martin McGuinness said the Ard Comhairle would hold talks at the weekend.

    But he also revealed his party was deeply concerned at comments by Democratic Unionist leader Reverend Ian Paisley in relation to Prime Minister Tony Blair’s assessment of the peace process.

    “I think the DUP needs to reflect because if they are now ruling out power sharing by March 26 this year, and transferring powers on policing and justice by 2008 that is very serious by any standards,” Mr McGuinness said.

  • Ian

    In the context of agreement on the fact that the justice ministry will be allocated by cross-community vote (thereby denying the ministry to SF or the DUP for the foreseeable future), the need for an indefinite period to establish ‘cross-community confidence’ before justice powers can be devolved should have been bypassed*.

    The DUP’s continued refusal to sign up for a fixed timetable for devolution of justice powers, given the agreed cross-community vote mechanism for appointing to the ministry, is oobstinate and pointless.

    Unless the DUP are saying they don’t trust the SDLP to handle the justice ministry either. Which is tantamount to “We don’t want a Fenian about the place.”

    And, in the light of the plethora of statements emanating from the twelve apostles over the last week, maybe that’s the problem.

    * (I would just add that it would be reasonable in my opinion for the DUP at this stage to adopt the position that the ‘cross-community confidence’ test must be established before any move to revert to a d’Hont allocation of the justice ministry.)

  • Crataegus

    When is “a constitutional nonsense” not “a constitutional nonsense”?

    That is too easy, when you are paid to create it or when you are paid to create something that isn’t nonsense and can’t.

    Interesting to note that Kelly no longer supports parity of esteem! Also given the delays in the process to date caused by his party his statement seems a bit rich. A degree of subjective memory loss seems an essential for politics.

    We want a majority of nationalists and designated Unionists to support it, too.

    And the rest don’t matter. That’s what I call democracy!

    A lot of the problems come back to structural problems within the initial agreement. Oh well told them it was a pile of manure years ago. To me clearly we are where we are because of mismanagement and stupidity, but there also seems to be a total lack of accountability. Incompetence is retained, the malign rewarded and no one is held to account. Welcome to Ruratania.

  • Rubicon

    Pete – I’m not at all sure that a form of quangoism isn’t on the cards here and Hain’s statement is far from definitive. When the news of SF moving towards an AF first broke I heard (from a reliable source) that a failure of the Assembly to agree devolution of P&J powers by May ’08 would result in a SoS appointment (or appointments – perhaps 2).

    What is the constitutional position on the appointment of ministers? Do ministers have to be members of the House of Commons or the Lords? In theory, could Sylvia H. and Mark D. be given the portfolio reporting to the SoS (rather than the Assembly)? If Sylvia and Mark qualify – wouldn’t Martin McG. and Peter R. qualify too?

    I’m not suggesting this as a way forward – but curious as to what COULD be being considered by the NIO (or already agreed in side deals). Technically, the above would put P&J in the control of the ‘Irish’ (SF’s terminology) but politically it’d be nonsense. It being nonsense doesn’t in any way rule it out from the possibilities or agreements NIO could put forward.

    I’m curious to know just what the SoS could do here. Anyone with answers?

    (If SF can’t get MI5 out – I don’t suppose there’s any chance of them settling for getting the tossers in the NIO to leave instead is there?)

  • Ian

    “The DUP’s continued refusal to sign up for a fixed timetable for devolution of justice powers, given the agreed cross-community vote mechanism for appointing to the ministry, is obstinate and pointless.”

    Or as Blair put it, “utterly unreasonable”.

  • Ian


    Am I right in saying that the transcript of Hain’s (and Hanson’s) appearances before the PfG Committee will (eventually) appear on the Assembly website? I know they stopped transcribing all routine Committee meetings but they are continuing to do so for evidential hearings (and legislative committee stages if the show ever gets on the road) – is that right?

    Also, if you don’t mind me saying, it’s rather naive of a seasoned process watcher like you to assume that, just because a proposal is ‘nonsensical’, the NIO won’t try to implement it anyway!?

  • Frustrated Democrat

    Blair and Hain have only themselves to blame for this shambles……….had they exhibited leadership and said this is it, take it or leave it no more discussion….. we wouldn’t be in this mess.

    This continual changing of policy due to partisan outside influences is a disaster that epitomises Labour policies over the past 10 years.

    What was right in November should be right now.

  • Wilde Rover

    So if the members of the Kindergarten Parliament go into a collective huff the teachers will pick the hall monitor?

  • ian


    “(If SF can’t get MI5 out – I don’t suppose there’s any chance of them settling for getting the tossers in the NIO to leave instead is there?)”

    There was an aspect of the St Andrews Agreement that may help to redress the balance in that regard, namely the removal of the ban on non-nationals taking up senior civil service posts in the north.

    The legislation was supposed to have been published by the end of last year. But of course it would be the NIO that would be responsible for drafting and implementing the legislation, which surprise surprise has yet to emerge.

    In that respect the British government are currently in breach of the StAA. It seems the turkeys have managed to postpone Christmas!

  • smcgiff

    Speaking of Constitutional Nonsense my fellow subjects…


    So, technically are we (in the Republic) still subjects of her majesty (for the time being at least)? Quickly, someone tell Reform!

  • Pete Baker


    “I’m not at all sure that a form of quangoism isn’t on the cards here and Hain’s statement is far from definitive.”

    Hain’s statement is indeed far from definitive.. in fact, it’s loaded with conditionality.

    As for a quangofied Commission for Justice.. I doubt that would be any less of a constitutional nonsense.