Commentary on Sections Miscellaneous Section 44: Northern Ireland department with policing and justice functions
100.Subsections (1) to (4) of section 44 amend section 21A of the Northern Ireland Act 1998 to provide a further model for a department with policing and justice functions, adding to the Assembly’s choice. A department set up under this model would be in the charge of a Northern Ireland Minister elected by the Assembly who would be supported by a similarly elected deputy Minister.
101.Subsection (5) inserts new section 21A(7A) to (7D), which provide for a new Northern Ireland department with policing and justice functions to be established under this model by Order in Council. This power may only be exercised, however, if the Secretary of State believes that there is no reasonable prospect that the Assembly will pass an Act establishing a department with policing and justice functions. The power may only be used once.
102.Subsection (6) of section 44 inserts new section 21B into the Northern Ireland Act 1998. New section 21B is an enabling power relating to this new model for a policing and justice department. It is available whether the new department is established by Act of the Assembly, or by Order in Council. It is designed to allow Ministers designate to be elected in advance of their taking up office on the devolution of policing and justice. If it was used, the Minister designate and deputy Minister designate would take up office after devolution of policing and justice, provided they took the pledge of office. If one or the other failed to do so, there would be a new election for one or both posts. The intention is to facilitate preparations for the new department, by enabling the new Ministerial team to begin operating in “shadow” form through these transitional arrangements.
103.Subsection (7) inserts new section 21C into the Northern Ireland Act 1998. It requires an Assembly committee to review the operation of the new Ministerial arrangements provided for by this model, and to report to the Assembly and Executive Committee no later than two years and ten months after devolved policing and justice functions are transferred to the department. The report must include a recommendation as to whether the deputy Ministerial office should be retained.
104.New section 21C also contains provision about the abolition of the deputy Ministerial office. If the Assembly resolve that the post should be abolished within the first three years of devolution, the Secretary of State must make an order to abolish the post on, or as soon as reasonably practicable after, the date specified by the Assembly. However if the Assembly resolve before the end of those three years that the deputy Ministerial office should be retained for a further period, the Secretary of State will not make an order to abolish the post unless and until that period, and any extension specified by the Assembly, have expired. If the Assembly does not resolve within the three years following devolution that the deputy Ministerial office should be abolished or retained, the Secretary of State must make an order abolishing the office as soon as reasonably practicable after the end of the three years. An order abolishing the deputy Ministerial office must be made by statutory instrument, but is not subject to any Parliamentary procedure.
105.An Assembly resolution to abolish or retain the deputy Ministerial office requires cross community support on a 50:50:50 basis (i.e. with the support of a majority of the members voting, a majority of the designated Nationalists voting and a majority of the designated Unionists voting).
106.Subsection (8) of section 44 gives effect to Schedule 5 to the Act.