Justice Minister’s sunset clause

The Assembly must decide whether to keep or change the system for justice devolution by next May. Peter Cheney considers the options.

Northern Ireland’s troubled history made the appointment of the Executive’s first Justice Minister a contentious choice. The deal which made justice devolution possible lasts until 1 May 2012 so the Assembly must make a decision in this term about the way ahead.

In November 2008, Peter Robinson and Martin McGuinness agreed that a Justice Minister should be appointed by a cross- community vote, which effectively opened the door for Alliance.

Any successful candidate requires the backing of a majority of nationalist and unionist MLAs, which is only possible with joint DUP and Sinn Féin support. Those parties can use the same procedure to remove the Justice Minister from office.

A Sinn Féin Justice Minister was unacceptable to DUP supporters and vice versa. Both parties also wanted to block their UUP and SDLP rivals. Even under d’Hondt, it was highly unlikely that the smaller parties would take the justice post.

David Ford was elected Minister (69-33) when justice was devolved on 12 April 2010. He was subsequently re-elected (73-28) on 16 May 2011.

A “sunset clause” meant that this system would end “not later than May 2012” and be replaced by “permanent arrangements”.

Without a deal, the Department of Justice will be dissolved on 1 May 2012. Power would return to the Northern Ireland Office. The parties must therefore reach a decision if they are to keep justice in local hands, which is also the British and Irish governments’ goal.

Direct rule would be particularly damaging for Sinn Féin, which promoted justice devolution as “Irish people administering power over Irish citizens”.

The parties can choose from the following options in the Northern Ireland Act 2009:

· the status quo;

· two ministers acting jointly;

· a Justice Minister and deputy Justice Minister;

· rotating the post between a Justice Minister and his or her junior Minister;

· transferring the justice remit to OFMDFM; and

· running d’Hondt (thus bringing it in line with the rest of the Executive).

Most of these are technicalities carried over from earlier talks. The two most realistic choices are the status quo and d’Hondt. Transferring justice to Peter Robinson and Martin McGuinness is a possibility but would be hard to work in practice. OFMDFM decisions are taken after long political discussions while justice ministers often need to make immediate choices.

The UUP and SDLP claim that cross- community voting gives Ford’s party an unfair advantage. Alliance now has two ministers for 50,875 voters. The SDLP and UUP, combined, have two ministers for 181,817 voters.

Alliance’s priority is to make sure that justice remains devolved and the party is relaxed about the method for choosing a Minister. Effectively, the decision will be made by the DUP and Sinn Féin.

Sinn Féin prefers d’Hondt for all ministerial posts and the DUP supports the cross-community system. Its Assembly manifesto says it would only consider a change “in the context of a wider review of devolution”. The party’s proposals include a voluntary coalition (in the long term) and cutting the number of departments from 12 to eight; the Department of Justice’s remit would not be affected.

Both parties may agree to keep the current system until that review is completed. Delays on previous Executive decisions suggest that this is likely, especially as any changes would need new legislation. Postponing the choice would stretch out the timescale to May 2015 or even May 2016, if Owen Paterson decides to extend the Assembly’s term.

When the NIO was asked for its view, a spokesman said that this was a matter for the Assembly.