Sections 8 and 9: Justice Minister
48.These sections give effect to an agreement between the Northern Ireland political parties to amend the 1998 Act to change the means by which the Minister of Justice for Northern Ireland (the “Justice Minister”) is appointed, and to remove the anomaly whereby the party of which the Justice Minister is a member has one extra Ministerial post in the Northern Ireland Assembly (the “Assembly”) than that which it would have pursuant to the d’Hondt formula.
49.The 1998 Act sets out the majority of the devolution settlement with Northern Ireland. Whilst certain matters were transferred to the competence of the Assembly in 1998, other matters were transferred later. Of particular note, was the transfer of policing and justice to the Assembly in 2010. This transfer is not straightforward, with related national security matters continuing to be excepted and therefore largely outside the competence of the Assembly. Given this complexity, and the fact that policing and justice remains a politically sensitive issue, the provisions in the 1998 Act for the appointment of the Justice Minister are complex and the Justice Minister is not dealt with in the same way as the other Northern Ireland Ministers.
50.The Justice Minister is not appointed by the d’Hondt procedure, but through nomination by one or more members of the Assembly and approval by cross-community vote. Currently, the incumbent can be removed if a motion is raised to that effect by either the First Minister and deputy First Minister (the “FM/dFM”) acting together, or 30 or more Assembly members, followed by a majority cross-community vote. The Act amends this process to give the Justice Minister the same security of tenure as that of the other Ministerial posts, although the process is not exactly the same due to the different appointment system.
Existing law
51.Section 21A of the 1998 Act sets out a number of possible appointment mechanisms for the Justice Minister, one of which may be selected and provided for by an Act of the Assembly. The Assembly enacted legislation in 2010 (the Department of Justice Act (Northern Ireland) 2010) which opted for the mechanism set out in section 21A(3A) of the 1998 Act. The Justice Minister is appointed by virtue of a nomination made by one or more members of the Assembly, and approved by a cross-community vote. Part 1A of Schedule 4A to the 1998 Act applies to this appointment, creating certain differences between this appointment and the appointment of other Northern Ireland Ministers.
52.First, the Justice Minister is appointed after the other Northern Ireland Ministers. The d’Hondt procedure, which ensures that each party is responsible for appointing a number of Ministers in proportion to the number of seats they hold in the Assembly, governs all Ministerial appointments, save for that of the Justice Minister. The Justice Minister’s appointment is made outside the parameters of the d’Hondt procedure, which means that the party from which the Justice Minister is appointed will have an ‘extra’ Ministerial post.
53.Second, the incumbent Justice Minister can be removed if a motion is raised to that effect by either the FM/dFM acting together, or 30 or more Assembly members, followed by a majority cross-community vote. This is in contrast to other Ministers, who are appointed by their party’s Nominating Officer, who has the power to dismiss the incumbent and refill the Ministerial position. The effect of the current provisions is that the position of the Justice Minister is less secure than that of the other Ministers in the Assembly.
54.The Act amends the appointment procedure to give the Justice Minister the same security of tenure as that of the other Ministerial posts, and to rectify the anomaly in respect of the relationship between the representation of parties in the Assembly and appointment to Ministerial office.