Justice Minister Naomi Long has announced that, following legal advice, no further action will be taken against Policing Board member Gerry Kelly over his tweet on the Maze prison escape.
Mrs Long had considered removing Mr Kelly from his role on the Policing Board after he was accused of “glorifying terrorism” in September when he tweeted about the anniversary of a mass breakout from the Maze prison.
The North Belfast MLA was one of 38 republican prisoners who escaped from the Maze in 1983. Prison officer James Ferris died of a heart attack after being stabbed while attempt to stop the breakout.
Mr Kelly described the prison break in his tweet as “one of Big Bob’s best ops”, referring to late senior republican Bobby Storey, adding: “I had the privilege of the front passenger seat.”
The tweet had been subject to a probe by the Policing Board, but the matter was subsequently referred to the Department of Justice.
Ms Long, who at the time stated that she found Mr Kelly’s tweet “offensive”, said: “Following the tweet about the Maze escape issued by Gerry Kelly on 25 September 2020, a number of people made complaints to the Northern Ireland Policing Board indicating they believed the Board Code of Conduct had been breached.
“In addition, I received three letters asking me to consider removal of Mr Kelly from the Board.”
She continued: “The Policing Board carried out an unsuccessful attempt to secure an informal resolution of this matter, as the complainants were unwilling to pursue such a course of action. The Board Chair then passed the matter to me.
“It is important to note that the test to be applied for whether there has been a breach of the code is considerably different in law to the test to be applied by me for removal of a member of the Board from office, the latter being significantly higher: any decision by me would also be subject to review by the courts.”
Insisting it was an “unusual requirement” she stressed that she sought advice from the departmental solicitor.
“Having considered that advice, it is clear that there are insufficient grounds even for holding an investigation into whether Mr Kelly should be removed from the Policing Board as the tweet, taken in the round with other statements of Mr Kelly, did not explicitly demonstrate a non-commitment to non-violence and exclusively peaceful and democratic means or otherwise suggest that there would be grounds to consider statutory removal,” she added.
“I have already made it clear that I found the tweet offensive - but I am also clear that in discharge of my functions I must act in line with established legal standards. On that basis, I have accepted the legal advice provided and will not be taking further action.”
The Ulster Unionist Party Policing Board member Mike Nesbitt called for the legal advice to be published.
The MLA said: “I find it extraordinary that the advice the justice minister has received says it is not even worth investigating.
"It should be remembered that concerns about Gerry Kelly do not merely relate to the tweet in question. There are other factors to be considered, not least the removal with bolt cutters of a lawfully applied wheel-clamp.
“Unless the Justice Minister is prepared to publish the legal advice she has received, she will be open to accusations of hiding behind it. So much for the openness and transparency that was promised in the New Decade New Approach.
"Further, it is typical of Mrs Long that she criticises me in her ruling, for failing to put more effort into seeking an informal resolution to my complaint.
"Anyone with an ounce of political nous would have worked out in milliseconds that an informal resolution was never going to be possible, given there were multiple individuals and organisations lodging complaints over the Gerry Kelly tweet.
"The vice chair of the Policing Board got that immediately. I regret it has to be pointed out to the only person who had the power to actually do something."
A Department of Justice spokesperson said: “Legal advice is privileged. The Department of Justice does not disclose any legal advice provided.”