Newton Emerson: Do we really need a department of justice?

Possible departure of Alliance’s Naomi Long should prompt a re-examination of the unusual ministry

Newton Emerson

Newton Emerson

Newton Emerson writes a twice-weekly column for The Irish News and is a regular commentator on current affairs on radio and television.

Alliance Party leader Naomi Long
Alliance Party leader Naomi Long (Neil Harrison/PA)

THE post of Stormont justice minister is a rather strange job. That goes some way to explaining the different responses to Naomi Long and Robin Swann running for Westminster.

UUP health minster Swann has been set up by his party to be knocked down. He was portrayed as the returning hero, taking on a vital job nobody else would do, only to resign within months to campaign for another office.

Long, the Alliance justice minister, will also have to resign if she wins a Westminster seat. Many unionists clearly feel she deserves as much criticism as Swann, plus more for double-jobbing during the campaign, yet the media is giving her an easy ride.

This comparison does not quite work, for reasons neither minister will find flattering.

Swann’s sudden departure has exploded the myth of his tenure during the pandemic. People are reassessing his performance against the state of the health service and finding nothing to celebrate.

Robin Swann on his last day as Health Minister at Stormont on Tuesday.
Robin Swann is standing for the UUP in the general election. PICTURE: COLM LENAGHAN

Long has been plodding along in a low-profile post that is Alliance’s by default. The public appears confused and indifferent over what her role entails, which brings us back to the odd nature of the job.

First, Alliance cannot simply replace Long with another one of its assembly members, as the UUP can replace Swann with Mike Nesbitt.

A justice minister must be nominated by the first and deputy first ministers, as must any replacement if they resign.

Long is running against DUP leader Gavin Robinson in east Belfast. If she wins it will be calamitous for the unionist party, so it is hardly inclined to smooth her path.

Alliance Party leader Naomi Long is hoping to win the seat from incumbent MP the DUP's Gavin Robinson. Cartoon by Ian Knox 
Alliance leader Naomi Long is hoping to win the East Belfast seat from DUP MP Gavin Robinson. Cartoon by Ian Knox

The DUP could propose a non-Alliance replacement, such as independent unionist Claire Sugden, who held the post when Alliance declined it in 2016. If Sinn Féin disagreed, there would be a political crisis.

If a non-Alliance replacement were agreed, Alliance would have one less department than it is entitled to, requiring the d’Hondt process to be re-run and every minister to be re-appointed. That prospect alone could cause a political crisis.

This scenario would play out if Long resigned to campaign for Westminster. It could also play out if she wins and the DUP decides it needs to reset the executive to deal with the calamity of losing.

The unique way of appointing a justice minister is a compromise agreed when policing and justice were devolved in 2010. It was envisaged as temporary.

Former Stormont justice minister and independent MLA Claire Sugden.
Independent MLA Claire Sugden was previously the justice minister

Bringing justice into the d’Hondt process is often discussed when Stormont reform is on the agenda, although reform tends to slip down the agenda when Stormont is operating. If the justice arrangement now leads to problems, pressure to reform it should increase.

The same mistrust that required the appointment compromise lies behind the curious remit of the Department of Justice. It is a sort of hollow home office, with little direct responsibility for the criminal justice system.

Judges and prosecutors are completely independent, as in most democracies. Unionist fears of a Sinn Féin justice minister influencing trials were never warranted.

However, the department also has effectively no control over policing – even its power to set long-term strategic goals for the PSNI requires Policing Board approval. The Courts Service has a high degree of autonomy, immigration is not devolved and the Fire Service is under the Department of Health. The Prison Service is the only major function a British home secretary or Irish justice minister might recognise in their in-tray.

First Minister Michelle O'Neill during the Police Service of Northern Ireland’s attestation ceremony for six newly qualified officers at Garnerville Police College  on Friday.
Sinn Féin attended a PSNI graduation ceremony for the first time.
Chief Constable Jon Boutcher, First Minister Michelle O'Neill, Deputy First Minister Emma Little-Pengelly, Justice Minister Naomi Long and Sinn Féin's Gerry Kelly at the PSNI's attestation ceremony for six newly-qualified officers at Garnerville Police College. PICTURE: COLM LENAGHAN

While the Department of Justice still performs important tasks, including policy coordination and some aspects of law reform, it is not the organisation most people tend to imagine.

If the compromise of 2010 is to be revisited, the structure of the department itself should be up for review. It could be given more responsibility, or its remit could be rationalised and clarified.

Getting rid of a department is not something to be pursued in haste, but the messy departure of its minister would be a good time to start considering the possibility

Failing that, abolition should not be unthinkable – Stormont departments have been merged before. Legal aid and law reform could go to the Department of Finance, which looks after some law reform already. Prisons and probation could go to the Department for Communities. Everything else could go to the Executive Office, formerly known as the office of the first and deputy first ministers.

As it is trusted to sponsor the body that appoints judges, why could it not have a similar arms-length relationship with other parts of the justice system?

Getting rid of a department is not something to be pursued in haste, but the messy departure of its minister would be a good time to start considering the possibility.