Fast-track Legislation: Constitutional Implications and Safeguards - Constitution Committee Contents


I have read your Committee's report on the Northern Ireland Bill and I thought it would be helpful to you and your Committee members if I explained why the Government has asked Parliament to expedite the bill's passage.

The Government made clear, in bringing forward the Northern Ireland (Miscellaneous Provisions) Bill in 2006 that it was committed to ensuring that, when the Assembly was ready to ask for the transfer of policing and justice powers, the necessary enabling legislation would be in place. This commitment was further strengthened by the St Andrews Agreement reached later that year.

On 18 November 2008, the Northern Ireland First Minister and deputy First Minister wrote to the Assembly and Executive Review Committee (AERC) of the Northern Ireland Assembly to say that they had reached agreement on a way forward to the completion of devolution. In January this year, the Committee reported on its deliberations on the devolution of policing and justice powers and the Assembly agreed the report on a cross-community vote. The agreement and the subsequent report of the AERC contained a number of recommendations on the shape of the post-devolution framework for the administration of policing and justice in Northern Ireland.

The Northern Ireland Bill is intended to give effect to those elements of the November statement and the AERC report that require primary legislation. Of course, the Bill does not provide for when devolution will happen, nor does it provide for what is to devolve - both of these still require further consideration by the Assembly and ultimately by Parliament.

However, given the undertakings we made at the time of the 2006 legislation, both before and after the St Andrews Agreement, the Government remains committed to ensuring that the necessary legislation is in place to enable the process to move as quickly as the Assembly wants it to. It is, in my view, absolutely critical that it is not the UK Government or Westminster that is seen to be delaying progress on the arrangements for devolution that the Government undertook to make.

The bill will enable the possibility of an early resolution to the issue of the devolution of policing and justice. It is not, however, the final step in the process of achieving devolution of policing and justice. The next stage would be a Bill in the Assembly to establish the Department of Justice. Then the Assembly would need to pass a resolution to request the transfer of responsibility for policing and justice. Finally, Parliament would consider a series of Orders in Council to effect the transfer of powers. To leave open the possibility of completing these steps during the period between now and the summer recess (which includes a purdah period for the European elections) it is necessary for the Northern Ireland Bill to receive Royal Assent by mid March. It would not have been possible to publish the Bill in draft or make it subject to pre-legislative scrutiny in Parliament and meet this timescale.

The report also questions, in the context of the draft Constitutional Renewal Bill published in 2008, whether the Prime Minister should have a role in senior judicial appointments and removals processes. The provisions in the Northern Ireland Bill are essentially to remove the post-devolution role of the First Minister and deputy First Minister in these processes, which are set out in the Justice (Northern Ireland) Act 2002, and to transfer these functions to the Northern Ireland Judicial Appointments Commission. However, both the legislation under which appointments and removals are currently governed (the Judicature (Northern Ireland) Act 1978) and the 2002 Act provide significant roles for the Prime Minister. The Northern Ireland Bill does not substantively change the role of the Prime Minister as set out in the 1978 and 2002 Acts. The Prime Minister also has a comparable role in Scotland under the Scotland Act 1998.

The provisions on the 2002 Act that deal with senior judicial appointments and removals were based on the recommendations of the Criminal Justice Review, which envisaged a specific role for the Prime Minister. The Criminal Justice Review, published in March 2000, was the most important and far-reaching survey of criminal justice in Northern Ireland in over 30 years and flowed from the Belfast (Good Friday) Agreement.

The key recommendations are as follows:


For the appointment of the Lord Chief Justice and Lord Justices of Appeal, responsibility for making recommendations to Her Majesty The Queen would lie with the Prime Minister, as now, but on the basis of recommendations from the First Minister and the Deputy First Minister. [para. 6.96]

Recommendation 103 TENURE

We endorse the current arrangements that give full-time judges and magistrates tenure during good behaviour until a statutory retirement age. [para. 6.136]

The Northern Ireland Bill does provide for a change to this process, in that the First and deputy First Minister will no longer have a role. This change was part of the agreement of the First and deputy First Minister of 18 November last year. Any further change to the appointments or removals processes would be outside the scope of that agreement. I am not, therefore, minded to alter the Prime Minster's role at this time.

I hope that this provides a helpful exposition of the Government's position on these issues. I am pleased that Sir Jonathan Phillips, Permanent Secretary of the NIO and his predecessor, Sir Joseph Pilling, are appearing before your Committee on 18 March. I know that they will be able to give the Committee a helpful insight into the history of urgent Northern Ireland legislation.

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