Explanatory Notes
Other Provisions
Section 18: Qualification for appointment
37.This section provides for changes to the appointment criteria for Lords of Appeal in Ordinary, the Lord Chief Justice, Lords Justices of Appeal, High Court Judges, county court judges (and deputy county court judges), resident magistrates and coroners and statutory officers listed in Schedule 3 of the Judicature (Northern Ireland) Act 1978 (including district judges). Currently many of these posts are only open to barristers or to solicitors and appointment depends on ‘practice’ (the period spent actively working as a barrister or solicitor) or ‘standing’ (the period since being called to the Bar or admitted as a solicitor). The section makes these posts (apart from that of Official Solicitor (subsection (8)) available to both barristers and solicitors and makes the qualifying criterion ‘standing’ alone. Subsection (10) makes it clear that a person is qualified to be appointed as the Crown Solicitor if he is a solicitor or a barrister.
Section 19: Judicial oath or affirmation
38.This section extends the number of posts required to take a judicial oath and provides for a new form of oath or affirmation and declaration. This oath is to be taken by appointees to the judicial offices listed in Schedule 6, which can be amended by the Lord Chancellor (subsection (4)). It replaces the current Oath of Allegiance and the Judicial Oath set out in the Promissory Oaths Act 1868. These oaths are set out in full in paragraph 6.24 of the Review.
Section 20: Crown Solicitor
39.This section amends the Northern Ireland Constitution Act 1973 to redefine the functions of the Crown Solicitor. This reflects the changed role of the Crown Solicitor in relation to the devolved administration as well as to the United Kingdom government.
Section 21: Judicial Pensions: pension sharing
40.The Welfare Reform and Pensions (Northern Ireland) Order 1999 provided for pension sharing on divorce or nullity of marriage. Article 40 of this Order allows for subordinate legislation to be made to ensure that various judicial pensions schemes are able to accommodate the new pension sharing regime. The corresponding power in England and Wales has been used to direct transfer payments away from older judicial pension schemes, which are closed to new members, and into the pension scheme constituted under the Judicial Pensions and Retirement Act 1993. Section 21 allows for a similar approach to be adopted in Northern Ireland by amending Article 40 of the 1999 Order to include a reference to the Judicial Pensions Act 1981 and the Judicial Pensions and Retirement Act 1993.
Part 2: Law Officers and Public Prosecution Service.General
41.The Office of the Director of Public Prosecutions was created by the Prosecution of Offences (Northern Ireland) Order 1972. That Order gives the Director of Public Prosecutions an overview of all prosecutions in Northern Ireland. The Director has a role in ensuring that all prosecutions are carried out properly and he can take over prosecutions being conducted by any other individual or agency. Article 5(1)(c) of that Order provides that the Director shall, where he thinks proper, initiate and undertake on behalf of the Crown proceedings for indictable offences (tried in the Crown Court) and for any summary offence or class of summary offence that he considers should be dealt with by him. The remainder of summary offences are prosecuted by police officers, usually in the magistrates’ courts.
42.Under Article 3(2) of the Prosecution of Offences (Northern Ireland) Order 1972 the Director operates under the superintendence and direction of the Attorney General in all matters and he is responsible to the Attorney for the performance of his functions. The Northern Ireland Constitution Act 1973 provides that the Attorney General for England and Wales is also Attorney General for Northern Ireland and the Director’s line of accountability has therefore been to the Attorney General at Westminster.
43.This Part of the Act implements the recommendations in Chapter 4 of the Review, establishing a Public Prosecution Service for Northern Ireland and providing for the appointment of the Attorney General for Northern Ireland after the devolution of justice functions. After devolution, the Attorney General for England and Wales will hold the new post of Advocate General for Northern Ireland. This Westminster figure will be responsible for matters relating to prosecutions that are not within the competence of the devolved administration, for example matters relating to national security and international relations.
