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Northern Ireland (Miscellaneous Provisions) Act 2006

Section 28: Duty to fill judicial vacancies

103.Section 12 of the Judicature (Northern Ireland) Act 1978 (c.23) (“the 1978 Act”) provides for the appointment of the Lord Chief Justice of Northern Ireland, Lords Justices of Appeal and High Court judges by Her Majesty the Queen. Subsection (1) of section 28 amends section 12 of the 1978 Act so that appointments to the office of Lord Chief Justice or Lord Justice of Appeal are to be made on the recommendation of the Prime Minister and appointments to the office of High Court judge are to be made on the recommendation of the Lord Chancellor. This subsection also places a duty on the Prime Minister to make a recommendation to fill any vacancy in the office of Lord Chief Justice or Lord Justice of Appeal (except that, while the Lord Chief Justice agrees, the Prime Minister may leave a vacancy in the office of Lord Justice of Appeal unfilled). Subsection (3) of section 28 places a corresponding duty on the Lord Chancellor in relation to the office of High Court judge.

104.On devolution of justice to the Northern Ireland Assembly, section 12 of the 1978 Act is to be replaced by virtue of section 4 of the Justice (Northern Ireland) Act 2002 (c. 26) (as amended by the Justice (Northern Ireland) Act 2004 (c.4)) to set out the post-devolution arrangements for senior judicial appointments. Subsection (2) of section 28 amends section 12 of the 1978 as substituted by section 4 of the 2002 Act (as amended) to place a duty on the Prime Minister to fill any vacancy in the office of Lord Chief Justice or Lord Justice of Appeal (except that, while the Lord Chief Justice agrees, the Prime Minister may leave a vacancy in the office of Lord Justice of Appeal unfilled).

105.Section 5 of the 2002 Act provides for judicial offices listed in Schedule 1 to that Act (High Court judge and below) to be appointed or recommended for appointment by the First Minister and deputy First Minister, acting jointly following selection by the Judicial Appointments Commission for Northern Ireland on devolution of justice. Section 5 of the 2002 Act was amended by paragraph 3 of Schedule 1 to the 2004 Act to allow the establishment of the Commission prior to devolution and consequently transferred functions of the First Minister and the deputy First Minister in relation to the Commission to the Lord Chancellor. The Commission was established in June 2005.

106.Subsection (3) of section 28 amends section 5 of the 2002 Act (as amended). It places a duty on the Lord Chancellor to fill any vacancy in a listed judicial office. But while the Lord Chief Justice agrees, the Lord Chancellor may leave any vacancy in an office unfilled.

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