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