Commentary on provisions of Act Section 5: Northern Ireland Ministerial appointment functions: specified offices
This section provides a limited power for the relevant UK Minister to exercise appointment functions, in relation to the offices specified in the section, during the current period without an Executive. Appointment functions in relation to those specified offices are currently conferred on Northern Ireland Ministers. It transfers only those powers that are currently conferred on Northern Ireland Ministers and makes no further changes to the appointment functions affected. The appointments will be made in accordance with the existing legislation, for a period and subject to the terms and conditions decided by the Ministers (or the full statutory term in the case of the Police Ombudsman). Section 5(8) requires the UK Minister to consult a Northern Ireland department prior to exercising these powers; this reflects the continued responsibility of the sponsor department for all matters to do with the bodies in question other than the appointment functions covered by this Act.
	The table in section 5(2) sets out the offices over which appointment functions (as defined in section 8(1)) normally exercised by Northern Ireland Ministers will be exercised by the "relevant Minister of the Crown", following consultation with the relevant Northern Ireland department. Unless stated otherwise below, the following appointment functions would be exercised by the Secretary of State:
Members of the Northern Ireland Judicial Appointments Commission (NIJAC) would be appointed by the Lord Chancellor. As set out above, most members are nominated by the Lord Chief Justice or professional bodies, and the Act would allow the Lord Chancellor to make the formal appointment of those members in place of the First Minister and deputy First Minister. The Lord Chancellor would also be able to appoint or reappoint lay members as necessary and to exercise other appointment functions conferred on the First Minister and deputy First Minister. The Lord Chancellor was responsible for appointment functions relating to NIJAC prior to the devolution of policing and justice in 2010.
Members of the Northern Ireland Policing Board. Similarly to NIJAC, many of these appointments would be nominees, in this case ten nominees of the political parties; to make these nominated appointments, the Secretary of State’s role would be to invite nominations from the parties and receive the required correspondence from new members. The Secretary of State would also be able to appoint independent members; when doing so, there is a requirement to ensure that the Board as a whole is representative of the community and to consult the relevant Northern Ireland department,1 district councils and others before making the appointment. The Secretary of State would also be able to exercise the other appointment functions of the Justice Minister.
Members of the PSNI above the rank of Chief Superintendent – including the Chief Constable and Deputy Chief Constable – are appointed by the Northern Ireland Policing Board, under section 35 of the Police (Northern Ireland) Act 2000, and would continue to be under this Act. However, as the appointments require the approval of the Minister of Justice, the Act would allow the Secretary of State to exercise this appointment function and others already conferred on the Minister. This will enable the Policing Board to make these appointments as it sees fit, including those where, like the post of Deputy Chief Constable, offices are currently filled by temporary appointees.
Members, Chair and Deputy Chair of the Probation Board for Northern Ireland. The Secretary of State would take on the Northern Ireland Minister’s appointment functions, including the appointment of members, Chair and Deputy-Chair. Members may self-nominate for the post of Deputy Chair: the successful applicant is formally appointed by the Minister.
The Police Ombudsman for Northern Ireland. This is a non-renewable seven-year (or until retirement) appointment made by Her Majesty on the recommendation of the First Minister and deputy First Minister acting jointly; under this section, the Secretary of State would take on the First Minister and deputy First Ministers’ appointment functions including making the recommendation.
	In combination with the definition in section 8, the power to exercise appointment functions in relation to these offices will cease when there is next a Northern Ireland Executive. This means that these powers would return to Northern Ireland Ministers as soon as they are in post, and any pending appointments or other appointment functions would again fall to them to exercise.
	The Secretary of State is empowered by section 5(3) to amend the list of offices in section 5(2) through a statutory instrument, transferring to the relevant UK Minister appointment functions in relation to other bodies and offices in respect of which legislation currently confers those functions on Northern Ireland Ministers. This is included to ensure that vacancies that need to be filled as a matter of urgency can be filled without the need for further primary legislation. Similarly, it would allow other appointment functions to be exercised if needed urgently – for example the removal from an office not covered in section 5 of someone who is no longer eligible to hold that office (for example following bankruptcy) but who can only be removed by a Minister.
	Under section 5(4), an instrument under section 5(3) is subject to the affirmative resolution procedure. The regulations must be laid before Parliament for approval, unless the Secretary of State considers it to be expedient for the regulations to be made without that approval. If the regulations are made without the prior approval of Parliament, then they must be approved within the period of 28 days beginning with the date on which they are made. If they are not, they cease to have effect and any additions made to the table in section 5(2) under the regulations are omitted. This would not affect the result of any appointment functions already exercised under the provisions in the regulations. As with the Act itself and the offices set out in section 5, the Government is clear that any further additions to the list by regulations would only be made where they were urgent and necessary for continued good governance and following discussions with the main Northern Ireland political parties.