Facts show nothing contentious in justice

Posted By: May 19, 2016

Newton Emerson.Irish News (Belfast).Thursday, May 19, 2016.

Why is the post of justice minister still considered ‘contentious’?

Before justice was devolved six years ago, the sticking point was Sinn Féin’s refusal to recognise policing. But Sinn Féin does now recognise policing and in any case, the justice minister has no meaningful control or oversight of the PSNI. Those functions remain carefully reserved to the all-party Policing Board, where Sinn Féin and the DUP cooperate without difficulty. The justice minister appoints the board’s minority of non-political members but the political members are appointed by the same d’Hondt mechanism used in the executive, so Sinn Féin and the DUP are about to become even more non-contentiously dominant than they were already.

In theory, the justice minister controls the PSNI’s budget, although only within his department’s overall budget, which is set by the DUP and Sinn Féin. Unionists might conjure up a scenario where a Sinn Féin justice minister refused to fund the policing of a parade or protest – ‘Camp Twaddell’ would be the obvious example. However, in practice, there are multiple devolved and non-devolved contingencies for funding extra security costs. No combination of street politics and executive politics will cause the PSNI to run out of money.

Once it became clear that Sinn Féin would sign up to policing, unionists raised the spectre of a justice minister interfering in trials. Old Bailey bomber Gerry Kelly was often cited to show why Sinn Féin should not be in charge of the courts.

This objection was absurd because the courts and the judiciary are effectively in charge of themselves. They fall under the Northern Ireland Courts Service, an autonomous quango deliberately walled off from political accountability. The justice minister has some grip over the purse strings – closing courthouses was a recent demonstration – but elected representatives are prevented by law and human rights requirements from setting judges’ pay, let alone from interfering in judicial processes.

The Public Prosecution Service is even more self-contained. It is a non-ministerial department in its own right, answering only on its budget and only then to the Northern Ireland attorney general, who is appointed by Sinn Féin and the DUP – and who has been twice re-appointed without the slightest disagreement.

So what does a justice minister actually do? Alliance’s David Ford made reducing legal aid a centrepiece of his tenure. Surveying Sinn Féin and the DUP’s apparent cosiness with the legal profession it is hard to imagine either party doing likewise but this would be a point of agreement between them, not a point of contention.

The main area of a justice minister’s responsibility and the real headache for our top two parties is the Prison Service. This is where the Department of Justice is most directly in control, yet it was barely mentioned during the long debate on devolving policing and justice. As a self-described “Guardian-reading liberal”, Ford was interested in prisons. Few other politicians want a task that is difficult, disaster-prone and electorally unrewarding.

Sinn Féin and the DUP would have the additional problem of becoming loyalism and dissident republicanism’s jailer. This would be particularly toxic for Sinn Féin, in ways that could backfire badly on the DUP. When Arlene Fosters says she would not support a Sinn Féin justice minister, little wonder Martin McGuinness seems unbothered.

Prisons also make justice toxic for the SDLP. It should have been entitled to the post when it was created, made a good show of complaining when it was passed over and might just possibly be offered the job if Alliance now went into opposition. However, in the cold light of day, would it really want the keys to Maghaberry?

If the SDLP leaves the executive, Alliance becomes entitled to stay by virtue of how many seats it won in the election, as well as by the policing and justice deal, removing the legitimacy question that hangs over its place in government. That would create a breathing space to annul the deal, bring justice under d’Hondt and normalise how it is allocated. But what would Alliance get out of that?

If the SDLP and Alliance both leave, Sinn Féin and the DUP will just have to resolve the matter themselves. They have a wide range of options to do so, from nominating minor parties or independents to rearranging oversight of the Prison Service. Recent history suggests they would patch something up – and who would remember the murky details and the principled stand of others when the next election rolls around in five years’ time?