Purpose

The Act paves the way for the future devolution of policing and justice in Northern Ireland by giving legislative effect to elements of the agreement announced by the Northern Ireland First and deputy First Ministers on 18 November 2008 and the report of the Northern Ireland Assembly’s Assembly and Executive Review Committee, endorsed by the Assembly on 20 January 2009.

The Act does not devolve policing and justice: the mechanism for this is already provided for in section 4 of the Northern Ireland Act 1998.  Devolution will not happen until the Assembly has formally requested the transfer, following a motion being tabled in the Assembly by the First and deputy First Ministers.  After that, Parliament will consider a series of Orders in Council to transfer powers.

Main elements

Section 1 and Schedule 1 provide for a new departmental model for a devolved policing and justice department and set out how that model – if it is the one chosen by the Assembly – would operate in the period up to 1 May 2012.  This new model, which reflects the agreement announced by the First and deputy First Ministers, is added to the menu of options already provided for in the Northern Ireland Act 1998.  The Assembly are able to choose from any one of the eight models in setting up a Department of Justice.  Under the terms of the agreement announced by the First and deputy First Ministers, the Assembly need to reach agreement on the future arrangements for ministerial oversight of the Department of Justice before 1 May 2012, otherwise the department would automatically dissolve on that date.

Section 2 and Schedules 2 to 6 deal with the arrangements for judicial appointments and removals to give effect to the First and deputy First Ministers’ policy that, post-devolution, responsibility for this should rest with the Judicial Appointments Commission instead of, as previously provided for in the Justice (Northern Ireland) Act 2002, with the First and deputy First Ministers.  The Assembly are under a duty to review the arrangements for judicial appointments by 1 May 2012.

Sections 3 and 4 make technical amendments to the statute book to prepare the way for the future transfer of policing and justice responsibilities.

• Section 3(1) provides that, post-devolution, the function of the current Attorney General for Northern Ireland in relation to providing guidance on the disclosure of juror information will be split between the Advocate General for Northern Ireland (in respect of national security and terrorism cases) and the devolved Attorney General for Northern Ireland (in respect of all other cases).  This reflects the split of functions previously provided for by Parliament in the Justice (Northern Ireland) Act 2002 in respect of many of the Attorney General’s other functions.

• Section 3(2) provides that the office of the Director of Public Prosecutions for Northern Ireland will be a ‘corporation sole’, a legal status that means the Public Prosecution Service is able to hold property in its own right, rather than having it vested in a department on its behalf.  This does not alter the relationship between the Director of Public Prosecutions or the Public Prosecution Service and the Assembly, as provided for already in the Justice (Northern Ireland) Act 2002: that remains unchanged.

• Section 4 extends the scope of the order-making power in section 86 of the Northern Ireland Act 1998 to provide for the possibility that executive functions may be devolved even where the legislative competence is to remain reserved.  This would provide Parliament, in due course, with greater flexibility to ensure that practical responsibility for functions sits at the most appropriate level while still keeping legislative competence for that matter reserved to Westminster.