“The [Justice] department dissolves on 1 May 2012 unless…”

As BBC NI political editor Mark Devenport reminds us, one of the oddities of our current ‘indigenous’ arrangements is that we can be fairly sure of one outcome of this election for the Alliance Party.

As long as at least one member of that party is returned to the NI Assembly it’s virtually guaranteed that they – most likely David Ford – will be the next NI Justice Minister.

As Mark Devenport points out.

Yesterday, on Inside Politics, I presented the first in a series of special election programmes. The Alliance leader David Ford denied that his party had been unprincipled in taking the Justice department after spending the first half of the Assembly mandate portraying themselves as Stormont’s only opposition. Mr Ford insisted that Alliance was making a real difference not just to Justice but to how the Executive conducts its business in general.

Mr Ford’s tenure at Justice (assuming he is reappointed on the other side of the election) is scheduled to come to an end in May 2012, when the sunset clause negotiated at Hillsborough comes into effect. If there’s no agreement on renewing the cross community appointment, or agreeing to put the department on the same footing as the others, then the Justice Ministry is set to be dissolved.

The Alliance leader can’t see any better alternative than the current compromise. He acknowledged that “we have a history in Northern Ireland that we always manage to have a little bit of a crisis over this” but played down the prospects of a repeat of the Hillsborough talks as May 2012 looms.

Well, we’ll see…  Here’s what the legislation has to say about 1 May 2012

8(1)The department dissolves on 1 May 2012 unless, before 1 May 2012—

(a)the Assembly resolves that the department is to continue operating from 1 May 2012, or

(b)a second Act of the Assembly (“the second Act”) makes provision authorised by sub-paragraph (3).

(2)A resolution for the purposes of sub-paragraph (1)(a) must be passed with cross-community support (as defined in section 4(5) of the 1998 Act).

(3)The second Act may provide that the department is to continue operating from 1 May 2012.

(4)The second Act may repeal the initial ministerial provision with effect from a specified date.

(5)If the second Act repeals the initial ministerial provision, it may also—

(a)replace the initial ministerial provision with provision of the kind mentioned in section 21A(3), (4), (5) or (5A) of the 1998 Act with effect from the specified date (and the relevant provisions of Schedule 4A to the 1998 Act apply), or

(b)provide for the department to be in the charge of the First Minister and the deputy First Minister acting jointly with effect from the specified date (and section 21(3)(a) and (b) of the 1998 Act apply);

and if no provision is made within paragraph (a) or (b), the Ministerial office of the Minister in charge of the department is to be filled under section 18 of the 1998 Act.

(6)If the second Act repeals the initial ministerial provision, a determination under section 17(1) of the 1998 Act must be made on the specified date.

(7)That determination takes effect immediately (and, accordingly, section 17(5) of the 1998 Act does not apply in relation to it).

(8)If the second Act replaces the initial ministerial provision with provision of the kind mentioned in section 21A(5A) of the 1998 Act, paragraph 11E(1) of Schedule 4A to the 1998 Act applies as if devolved policing and justice functions were first transferred to, or conferred on, the department when the determination required by sub-paragraph (6) takes effect in accordance with sub-paragraph (7).

(9)Nothing in this paragraph stops an Act of the Assembly dissolving the department at any time.

From that, the options available to the Assembly would seem to be (1) continue with the current system of cross-community vote to appoint a NI Justice Minister, (2) replace the current system with an agreed system of appointing a NI Justice Minister(s) [various options available, default system D’Hondt], (3) “provide for the department to be in the charge of the First Minister and the deputy First Minister acting jointly” [added emphasis].

But the NI Assembly must choose one of those options by 1 May 2012.  And if they wish to continue with the current system it has to be on the basis of a cross-community vote.

Otherwise the NI Justice department will be dissolved.

And, perhaps, the Alliance Party will come up with a new precondition by then…

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  • Pre-condition maybe.
    But Im not 100% sure that they want the Justice Ministry again, especially if they are entitled to a Ministry “as of right” which they probably will.
    Interesting scenario if they want another Ministry AND Justice on the back of say 9 or 10 MLAs.

  • otto

    Compared with other ministers David Ford doesn’t seem to have had his fair share of abuse yet (except from lawyers seeing a threat to their legal aid rates and “residual terror groups” upset about political status for prisoners).

    Is that a sign that he’s doing a decent job or that the cross-community selection means the big guys leave him alone and the littler ones just look like whingers when they attack him.

    It’s not like he hasn’t brought a bit of his own policy to the role – refusing to allow new peace walls for example and showing an ex-social workers preference for investigative panels over adversarial dispute in family matters.

    Anyone got any specific complaints (other than the falure to use d’hondt in his appointment)?

  • ItwasSammyMcNally

    This is largley a problem for the DUP, with their No transfer of Police Powers in a political lifetime already conceded – presumably they are still touchy about SF getting this department.

    Given these ongoing DUP’s sensitivities Alliance will presumably step in to help them out.

  • joeCanuck

    The position should obviously be part of the normal d’Hondt system. FCOL, if the FM might be a Sinn Feiner, what’s the problem of having one as justice minister. Everything has to be agreed anyway.

  • Well in fairness the PFM/DFM is (but dont say it out loud) a joint office.

  • Comrade Stalin

    Sammy:

    This is largley a problem for the DUP, with their No transfer of Police Powers in a political lifetime already conceded

    A lot of things have been conceded. Not one ounce, not one bullet etc.

    – presumably they are still touchy about SF getting this department.

    Yes they are. In fairness though, SF are touchy about any unionist getting it.

    As for the article .. I think Ford has done a good job with his year, but then again, I would say that. I know for a fact that he takes the job extremely seriously, and that he has brought his own ideas about reform to the role. In fairness, the rest of the parties, with the exception of the UUP, have by and large fallen in and played their part whenever there was real work to be done as there was when the Justice Bill was going through the various committee stages – aside from some silly politicking over mistaken releases made by the Prison Service. And what other Justice Minister would have been able to sort out the issues associated with the dissident prisoners in Maghaberry ? Notice how that quietly went away ..

    The balance of power in the assembly is not likely to change – if anything it will be consolidated further. So let’s look at what’s likely to happen. While I think DF is well qualified for the job, it would be both naive as well as churlish to try to argue that this is why he is in the role. Alliance has the ministry because this is politically expedient for the DUP and SF. As soon as it ceases to be so, Alliance will no longer have the ministry. For that to change is going to require SF to vote for a unionist justice minister, or the DUP to vote for an SF minister – not likely, certainly not before 2012.

    In terms of the question about Alliance getting a ministry through d’Hondt .. under the current Northern Ireland Act, if Alliance have the right number of seats in the assembly then that is what will happen, there is no mechanism to stop it. If the DUP and SF then choose to reappoint DF as justice minister after d’Hondt has been run – that is their prerogative. They have the means to appoint someone else but, for the reasons I outlined above, it’s very unlikely that they will.

    As a side note, just so that it’s not all sycophancy on my part .. as someone who has to deal with the reality of anti-social behaviour, I flatly disagree with DF’s ban on “peace walls”. I agree that we can’t erect barriers to separate communities who can’t talk to each other, but that’s not the same as erecting a barrier to stop people from being terrorized by gangs of congregating stone throwing, vandalizing spides whose parents don’t care what they get up to.

  • granni trixie

    There are signs that, partly to do with economic climate,partly to do with devolution and maturation, that the electorate is now more inclined to vote on the basis of who they think will or has done a good job.
    One thinks of Catrina in Education or McGimpsey in Health and I think most would agree that a change in personnel would help the situation.

    However, so many reforms were required to varous elements in the Justice system when it was finally devolved that if DF had gone about doing his job badly this would have shown up,especially in view of all the sensitivities to be negotiated. I am well pleased with DF performance in setting up a sensible framework for reform. Even allowing for my obvious bias, I think it is commonsense for him to give a push to reforms now that he has analysed what the problems are and has set in track and action plan, the biggest challenge right now being in the prisons.

    ‘On the doorsteps’ in my own area I found that many people mentioned that they were happy about plans impacting on the gravy train for lawyers – but a few said they were unhappy with Alliance for same reason – they were in the legal profession ofcourse.

  • 241934 john brennan

    “No Nationalist need apply” – at least until after 2012.

    That was the gerrymandered agreement cobbled up between Sinn Fein and DUP – to stop SDLP nominee, Alban Maginness, from rightfully getting the first devolved post,as Justice Minister – as he would have done if the GFA agreed d’Hondt system had been run.

    Presently there are 11 ministerial posts at Stormont. Under the scrupulously, mathematically, fair D’Hondt system that results in 6:5 unionist/nationalist, division of posts. Under the SF/DUP carve up there is presently a 7:4 unionist/nationalist split.

    This is not just discrimination against the SDLP – it presently discriminates against every nationalist elector – and is set to continue beyond the May elections.

    Not so long ago Sinn Fein boycotted Stormont – Now they happily take their seats in a Gerry-Mandered Stormont parliament.

    How else can we describe a parliament, in which a particular ministerial post is denied to any Catholic or Nationalist

    Yet a Sinn Fein First Minister (or co-equal Deputy First Minister), who spent a lifetime opposing an “internal settlement” is now happy to preside over a gerrymandered internal DUP/SF carve up, that discriminates against all nationalists in Northern Ireland!.

  • granni trixie

    I’m a firm believer in “alls well that ends well”. Get over the wingeing – the public have moved on in the Justice debate.

  • 241934 john brennan

    Grannie; “all’s well that ends well” is OK, provided history does not repeat itself – particularly our local history of discrimination and gerrymandering – that gave rise to the one man one vote campaign – resistance to that – resulting in a generation of bloodshed.
    In case of the appointment of a Justice Minister after the May election, the bad habit of discrimination against Catholics/Nationalist is set to repeat itself – despite laws against the bad old practice in job adverts of saying “no Catholic need apply”.

  • granni trixie

    ‘One man one vote’ was a nonviolent campaign appropriated by a physical force campaign to intimidate people into change,including to a united Ireland.

    For the record, Bob Cooper played a leading role in addressing discrimination by legal means. I do not consider DF in terms of being of one religion or another so do not see his appointment as ‘discriimination’.Bear in mind, that, as far as I am aware, Alliance did not campaign to get this post,but played its part in an innovation to solve a problem But from what you have said I do not expect you agree.

  • 241934 john brennan

    Grannie: You’re right. I don’t agree. Discrimination is discrimination, is discrimination.

    Exclusion and/ or selection on the basis of race, colour, creed or politics is unprincipled discrimination. Whether it is jointly, secretly (or openly) agreed between Sinn Fein and DUP it is immaterial.

    Irrespective of how the electorate votes in May, the post of Justice Minister is undemocratically reserved for a unionist with a small u.

    Remember the one time great liberal Prime Minister, Terence O’Neill, getting a lot of stick from the DUP for daring to visit a Catholic Grammar school – then his wife rather spoiling his “liberal” image by locally advertising for “protestant housekeeper”.

    The post of housekeeper is not quite the same as Justice Minister. But the principle is the same.

    So the question addressed to Sinn Fein is: why make exceptions to ensure a protestant and/or unionist Justice Minister?

  • granni trixie

    Your perspective – labelling people in terms of unionist/protetant etc is simplistic and alien to me. I prefer self defintion …like I filled in on the census form that I was “Northern Irish” and when I fill in forms I express it as “British-Irish” or “Irish-British”,dependant on my mood at the time. I just do not identify with labels Nationalist or Unionist.

  • ItwasSammyMcNally

    241934 john brennan,

    “In case of the appointment of a Justice Minister after the May election, the bad habit of discrimination against Catholics/Nationalist is set to repeat itself”

    What you are, failing to take account of, perhaps deliberately, is the distance DUP had to travel on this issue to get us to the compromise that is currently in place and that is likely to stay in place.

    Most of the electorate recognise this and with the debate amongst the Unionist electorate precoccupied with possiblitly of a Nationalist (SF) first minister the statement above just looks plain silly and is about as convinicing as Unionists arguing on Slugger that 50:50 selection in the PSNI is the same as anti-Catholic discrimination that helped kick start ‘the troubles’.

    Sometimes the normal principles of who gets what job and when, whether it is in the Police or the Justice department have got to be tweaked – for the greater good.

    Try checking out the bigger picture.

  • Comrade Stalin

    john brennan,

    “No Nationalist need apply” – at least until after 2012.

    Why try to characterize it as discrimination against nationalists ? The mutual veto prevents either a nationalist or a unionist from getting the post.

    That was the gerrymandered agreement cobbled up between Sinn Fein and DUP – to stop SDLP nominee, Alban Maginness, from rightfully getting the first devolved post,as Justice Minister –
    as he would have done if the GFA agreed d’Hondt system had been run.

    Who says the d’Hondt process would be resumed rather than run from the top ? If that had happened then the DUP would quite likely have taken the job. So isn’t it really discrimination against unionists ?

    Presently there are 11 ministerial posts at Stormont. Under the scrupulously, mathematically, fair D’Hondt system that results in 6:5 unionist/nationalist, division of posts. Under the SF/DUP carve up there is presently a 7:4 unionist/nationalist split.

    If d’Hondt is fair, then please explain to me why the UUP have double the SDLP’s representation on the Executive despite both parties having the same number of assembly seats ?

    Yet a Sinn Fein First Minister (or co-equal Deputy First Minister), who spent a lifetime opposing an “internal settlement” is now happy to preside over a gerrymandered internal DUP/SF carve up, that discriminates against all nationalists in Northern Ireland!.

    The Stoops represent about 1/3rd of nationalists and with a bit of luck their ridiculous Prima Donna whinging will lead to them representing even less.

    Little tip for you, John. If you want to persuade people to vote for you, don’t remind them of the battles you fought and lost.

    So the question addressed to Sinn Fein is: why make exceptions to ensure a protestant and/or unionist Justice Minister?

    Because they didn’t want the SDLP taking the seat of course. Is it really so hard to imagine that a political party might, you know, try not to help a rival political party ?

  • 241934 john brennan

    If d’Hondt had been run from the top again the largest party, the DUP, would have had first choice of Executive posts, and may have chosen Justice. That would have been democracy at work.

    The SDLP would then have finished up with 2 posts, out of 11. – the same as the UUP. The Alliance party would still not have qualified for any Executive post – and that is also democratic.

    To paraphrase St Augustine, the Alliance Party position in the matter is: “give me democracy and integration, but not yet.”

    The DUP/SF jointly agreed position was, and remains, that they don’t trust each other in mattesr of policing and justice – hence their crudely agreed “no nationalist” gerrymander – with prearranged joint support for a unionist with the small U.

    Do you think if the Alliance Party had held out indefinitely for prior delivery of its publically stated preconditions, the DUP/SF axis would then have offered the post to the Green Party, or independent Kieran Deeney ?

    The DUPand SF did what they have always done, reverted to antidemocratic methods – only this time they found an undemocratic solution that did not involve either, or both, of them walking out – and pulling the house down.

    But isn’t it ironic that after all the years of blood, sweat and tears before a democratic solution emerged and was finally agreed, the two problem parties, with the connivance of the Alliance Party, have now found an alternative way of subverting democracy

  • Comrade Stalin

    If d’Hondt had been run from the top again the largest party, the DUP, would have had first choice of Executive posts, and may have chosen Justice. That would have been democracy at work.

    Yes, so stop the bullshit about the SDLP being entitled to the Justice post as of right. It depends on what way d’Hondt gets run. And stop arguing that it’s discrimination against nationalists.

    The SDLP would then have finished up with 2 posts, out of 11. – the same as the UUP. The Alliance party would still not have qualified for any Executive post – and that is also democratic.

    Describing it as “democratic” is a stretch. d’Hondt is nothing to do with democracy. Indeed, d’Hondt is designed for situations where democracy by itself cannot deliver stable government. Surely there is a point there ?

    To paraphrase St Augustine, the Alliance Party position in the matter is: “give me democracy and integration, but not yet.”

    Alliance doesn’t accept that d’Hondt promotes either democracy or integration, and it never has. Alliance policy is that d’Hondt is ended and the selection of the Justice Minister is entirely consistent with that.

    Do you think if the Alliance Party had held out indefinitely for prior delivery of its publically stated preconditions, the DUP/SF axis would then have offered the post to the Green Party, or independent Kieran Deeney ?

    There is nothing wrong with either of the two individuals (both of whom are likely to lose their seat, I might add) but they don’t have the experience and background to bring to the bear that Alliance has.

    The DUPand SF did what they have always done, reverted to antidemocratic methods – only this time they found an undemocratic solution that did not involve either, or both, of them walking out – and pulling the house down.

    What the DUP and SF have done is delivered four years of stable administration. There’s plenty about it not to like, but the reality of the matter is that the SDLP’s warped conception of democracy couldn’t deliver stable government.

  • 241934 john brennan

    Comrade Stalin: Whatever it is, the self-nominated and preordained anointing of David Ford as Justice, post the May elections, has nothing to do with democracy.

    Like the appointment of Caligula’s horse as member of the Roman Senate, it has also little to do with the proletariat – and a lot to do with the idiosyncratic behavior of our own incumbent odd couple, Marty and Peter.

  • Comrade Stalin

    Comrade Stalin: Whatever it is, the self-nominated and preordained anointing of David Ford as Justice, post the May elections, has nothing to do with democracy.

    It’s not democracy when a minister is appointed through a majority vote ?

    What other governments anywhere in the world meet your definition of democracy ?

  • 241934 john brennan

    Comrade Stalin. The Justice Minister is not appointed by majority vote, but by cross community vote, where “majority” means 51% of those designated as “Unionist” + 51 % of those designated as Nationalist”.

    On current arithmetic this means that when the SDLP nominates Alban Maginness it doesn’t matter if he gets 75% support of all Assembly members, if 25 or 26 DUP members either vote against, or merely abstain.

    This “cross community” provision was introduced as a safeguard measure, to prevent “the other side” from springing ambushes and voting to do away with the public holiday on 12th July, or to have the Tricolor flown above Stormont etc.

    In effect the DUP and Sinn Fein have turned this “cross community support” mechanism into a mutual, anti-democratic, veto mechanism. These “petitions of concern” are now used to block any matter, like the Maze sports stadium, hare coursing, the Dawn Purvis report on educational underachievement etc .

    So the post of Justice Minister requires, not majority democratic support, but only enough prearranged DUP and Sinn Fein support.

    This usually results in the lowest common denominator – in this instance a non-catholic unionst with a small u.

  • Comrade Stalin

    On current arithmetic this means that when the SDLP nominates Alban Maginness it doesn’t matter if he gets 75% support of all Assembly members, if 25 or 26 DUP members either vote against, or merely abstain.

    You seem to agree with me that the cross community voting system (the SDLP’s idea) is totally broken because it allows a minority rump to destabilize the assembly ? Alliance proposed getting rid of it but the SDLP wanted to retain it. Of course, that was when the SDLP was the largest nationalist party and weren’t so concerned about votes going against them.

    In effect the DUP and Sinn Fein have turned this “cross community support” mechanism into a mutual, anti-democratic, veto mechanism.

    Cross-community consent is has been present since the GFA. It’s bullshit. But the SDLP wanted it.

    These “petitions of concern” are now used to block any matter, like the Maze sports stadium, hare coursing, the Dawn Purvis report on educational underachievement etc .

    But why would you object ? Wasn’t it the SDLP’s vision to have the assembly operate on a binary consent basis ?

    So the post of Justice Minister requires, not majority democratic support, but only enough prearranged DUP and Sinn Fein support.

    The Justice Minister was elected with 69 out of 102 votes. How do you figure that’s not majority democratic support ?

    This usually results in the lowest common denominator – in this instance a non-catholic unionst with a small u.

    I’m sorry that you’ve got such a problem with non-Catholics. I think you should do something to address your obvious suspicion of people with different religious beliefs.

  • joeCanuck

    non-Catholic

    John, I’m slightly confused. Can you point me to the legislation that requires parties to designate as “Catholic” or “non-Catholic”.
    And how do you know which church, if any, that David Ford goes to on Sundays? Did it take much research?
    You wouldn’t be demonstrating a bit of bigotry, would you?

  • 241934 john brennan

    Comrade Stalin: It used to be said of Northern Ireland politics that you could put a Union Jack on a donkey and get it elected to Stormont. Now we have reached the stage, where even before an election, we can tell which donkey is predestined to be Justice Minister – the unionist without the unionist colours – but also the one without any perceived shade of nationalist green.

    Perhaps progress, but certainly not democracy?

    Joe: I used to live in Antrim. The point about a catholic V non-catholic Justice Minister is that I don’t think a majority of the DUP would ever put their hands up to vote for any Catholic in this post. I was also opposed to the non-democratic, non-elected appointment of token catholic, G.B. Newe, in the old Stormont parliament.

  • otto

    Who was it decided that the OFM and DFM positions wouldn’t be part of the D’Hondt round?

    That wasn’t the designed to give the UUP and SDLP an extra seat each at the executive table was it?

  • otto

    *the system