Justice a minefield Big Two must tiptoe through together
The Justice ministry has been a bone of contention between the DUP and Sinn Fein since 2010. It's high time they sat down and sorted it out, writes Alex Kane
For a society that is still in the process of moving from conflict to conflict resolution, the administration of justice was always going to be a difficult department. The minister was always going to have to make decisions - particularly on prisons, policing, public order, courts and some legacy issues - which would make them unpopular with one community or the other.
So unpopular, in fact, that the DUP and Sinn Fein reached an understanding in 2010 that the post would not be included in the d'Hondt round of ministerial allocations and could instead be offered to another MLA - even if the party concerned had not won enough Assembly seats for automatic entry to the Executive.
It was assumed that they had reached this understanding because they did not actually trust each other with the job. But bearing in mind the layers of veto and ability to crash the Executive available to both of them if they were not happy with a ministerial call, it struck me that there was always something else going on in the background.
My own conclusion was that they both reckoned that their own voter bases were not ready. In other words, the DUP could not sell a Sinn Fein Justice Minister, and Sinn Fein could not sell a DUP one either. Six years later that still appears to be the case.
It was also assumed that Alliance would, as it has since 2010, take the job again. It first took it in April 2010, and probably saved the Executive from collapse. It took it again in May 2011 following the Assembly election.
Crucially, at that election it also won enough seats to secure entry to the Executive in its own right, getting over the problem that, in retaking Justice, it was simply coming into the Executive through the back door again. But, at the recent election, its vote went down and it did not win enough seats to guarantee automatic entry to the Executive.
That gave it a problem, because taking Justice yet again - and it was offered - meant that it was dependent on the DUP and Sinn Fein and at their mercy in terms of what it could do. Between 2011 and 2016 it saw how often the Big Two parties were prepared to undermine both David Ford and Stephen Farry.
Also, before it made its decision to reject Justice last Thursday evening (although it left the door open), it knew that both the UUP and SDLP would not be in the Executive, so maybe it thought that the DUP and Sinn Fein would be so keen to have Alliance on board that they would be biddable in terms of what Alliance needed for political cover.
Yet, after a particularly stormy meeting with the DUP/Sinn Fein before its own party council, it became clear that Arlene Foster and Martin McGuinness were playing hardball.
But if Alliance did not take the job, who would? There was a suggestion that the DUP and Sinn Fein could opt for a joint holding of the post between themselves, or could pick someone who wasn't an MLA.
But on Saturday afternoon a spokesman from the Executive Office seemed to dismiss these options: "The appointment of a (Justice) Minister will be conducted under the provisions of the Justice Act 2010, which does not provide for a joint ministerial post. Only a Member of the Assembly can be nominated to hold the office of Minister of Justice (Schedule 4A of the Northern Ireland Act 1998)."
Experience suggests that nothing should ever be ruled out when it comes to saving the Executive.
That said, a joint ministry or an outsider seems very unlikely - albeit not impossible.
But I suspect that a minister who was unelected would raise all sorts of other problems when it comes to accountability with such a sensitive role. Could he/she even sit in the Assembly chamber? And while it might get the DUP and Sinn Fein over a hurdle, it would also point out to everyone else that there was still a huge hurdle and a continuing problem.
Steven Agnew, leader of the Greens, has been sounded out and has not dismissed the idea. But saying yes could bring huge electoral risks for a party that has tended to present itself as an alternative to old politics.
Quite apart from the fact that he would be accused of propping up potential dysfunctionalism, there is also the likelihood that he would be further accused of bailing out two parties who did not want to make their own difficult decisions.
The other thing worth bearing in mind about the Greens is that, generally speaking, it is an anti-Establishment party, and I am pretty sure that a deal with the DUP and Sinn Fein would lead to some major internal ructions further down the line.
Claire Sugden, the independent MLA for East Londonderry, was also approached.
Her profile has been fairly low since she replaced the late David McClarty.
But she took on the DUP and UUP machines at the election and held onto a seat that most observers believed she would lose.
She is articulate, bright, thoughtful and a great deal cannier than people may imagine (I interviewed her a couple of times before the election).
But the problem with being an independent is that she has no party machine to back her up, let alone give her the support she will need to run a department and look after constituency duties.
On top of that, the Justice Minister has a security detail with him/her at all times, and that can make a huge difference to both your public and private life, particularly the knock-on impact for family and friends.
While I have no doubt that she could be surprisingly good at the job - she has acquitted herself well during the last few days of intense media scrutiny - I sense that her initial enthusiasm has dampened.
She can bide her time until a formal offer is made.
So, what does that leave us with?
Well, Alliance would, I think, still like the job, but its negotiating hand has been seriously weakened by the fact that the DUP and Sinn Fein have other options.
I would not rule it out, but it would require either it or the Big Two to climb down from their position of just a few days ago.
The best option, of course, would be for Foster and McGuinness to do the deal themselves. If they can trust each other enough to share out the other Executive responsibilities, there is no reason why Justice cannot be included.
It would require them to tiptoe through potential minefields, but those minefields will still have to be tiptoed through by them even if they give the job to an outsider.
This is the third Assembly mandate with the DUP and Sinn Fein as top dogs. They won a whopping joint mandate to govern Northern Ireland and they should get on with it.
Normal politics isn't just about Government and Opposition, it's also about the Government taking full responsibility when it has the required numbers to do so.
Either way, they will need to make a decision within the next 36 hours.