The contradictions of the North's "restorative justice" schemes are becoming more apparent, writes Frank Millar
Any person found guilty of treason, murder, manslaughter or kidnapping since April 10th, 1998, need not apply for work on a state-regulated community restorative justice (CRJ) scheme in Northern Ireland.
However, if their offence was committed prior to the signing of the Belfast Agreement, he or she may be deemed eligible for such employment at the heart of the North's criminal justice system.
That was the "appalling vista" defined by one senior Tory commentator at Westminster yesterday as he studied the detail of the British government's revised protocols for the operation of the schemes intended to deal with low-level crime of the kind of everyday concern in local communities.
"Flawed and unacceptable" was the official verdict of Conservative spokesman David Lidington, echoing the exasperation and alarm of the SDLP that such schemes should even be contemplated with state approval in circumstances where "the culture of paramilitarism" still persists.
CRJ schemes bring victims and offenders together with a view to recompense being made and differences resolved at community level and without recourse to the courts. In a written parliamentary statement yesterday justice minister David Hanson assured MPs the British government would not tolerate state-funded schemes becoming "a tool of paramilitary control".
However, the sisters of murdered Belfast man Robert McCartney believed the original proposals were drafted to achieve precisely that. And the SDLP maintains that, whatever the intention, the outcome can only be an extension of paramilitary control in communities still awaiting the "alternative" policing dispensation demanded by Sinn Féin.
Like the SDLP leader Mark Durkan, Mr Lidington was unimpressed by the pre-publication spin suggesting that Northern Ireland Office ministers had been listening to the concerns raised following publication of the draft guidelines last December. And both men were unmoved by the NIO's clear expectation that these concerns would be considered met by the "concession" in the revised draft now requiring CRJ schemes to report any crime thought suitable for the restorative justice process directly to the Police Service of Northern Ireland.
Mr Lidington noted the protocols would not extend to CRJ schemes' "other activities", involving "non-criminal" offences and anti-social behaviour, which some schemes reportedly say account for up to 85 per cent of their work. The government's defence is that CRJ schemes are already operating in loyalist and republican communities and that it is better to have them subject to proper regulation. Yet it would appear there are to be limits to the amount of regulation.
In any event - as with the proposed complaints procedure to be established by the Probation Service - Mr Lidington declared it difficult to see how any of these intended reassurances would have any impact "while paramilitary organisations intimidate and withhold support for the police and the courts in areas where many of the CRJ schemes operate".
For the Conservatives, like the SDLP and the other parties on the Northern Ireland Policing Board, this is the nub of the matter - that the government has put the restorative justice cart before the policing horse.
In its submission the policing board did not confine its reservation to the original plan to allow schemes to bypass the PSNI by reporting offences to a "third party" statutory agency. Rather the board argued from first principle that "the imprimatur of the state" should be withheld from any scheme which refused to accept and support the police.
In its escalating campaign against the proposals in recent weeks, the SDLP has also insisted state-financed schemes must prove their impartiality, so effectively arguing this should preclude any scheme linked to Sinn Féin or any other political party. Questioning the "false urgency" generated by ministers, Mr Durkan has suggested the issue should properly be left to the substantive discussion Secretary of State Peter Hain says he intends to open with Sinn Féin come the autumn on policing and justice issues.
Having been promised a further 12-week consultation, the SDLP is seeking specific assurance that no decision will be taken to approve any scheme on the basis of the protocols published yesterday. And while they avoided having to face MPs and answer questions in the Commons yesterday, Mr Hain and Mr Hanson will face renewed parliamentary pressure in the autumn to put these schemes on a statutory basis and permit MPs and members of the House of Lords to vote on them.
In the meantime NIO ministers may find that the PSNI is not so content on second reading. The confident expectation has been that existing groups that do not support the PSNI would be unable to sign up for these protocols, and that the police will be centrally involved with any that do.
However, it is hard to see how these protocols can satisfy Chief Constable Sir Hugh Orde's requirement that CRJ schemes in Northern Ireland should be readily understood by police services throughout the rest of the United Kingdom. In evidence to the Northern Ireland Affairs Committee last November, Sir Hugh also argued that people associated with paramilitary groups and with "substantial previous convictions" would not have the necessary credibility to be associated with schemes purporting to make the community a safer place.
Where will that particular line be drawn? Will people convicted for the murder of a policeman be refused, but the killers of ordinary citizens be deemed eligible? And what of those who inflicted punishment attacks, or "exiled" those who even now are not free to return home?
Perhaps ministers have an answer for these potential contradictions. But there would seem little justice, and nothing much "restorative", about any system where they are allowed.