Justice (Northern Ireland) Act 2002

Justice (Northern Ireland) Act 2002

2002 CHAPTER 26

Commentary

Schedule 7: Functions of Advocate General

178. The changes in this Schedule are not intended to take effect until after the devolution of justice functions and the appointment of a local Attorney General for Northern Ireland.

179. Paragraph 1 of the Schedule amends the Northern Ireland Act 1998 to allow the Advocate General for Northern Ireland to refer Bills of the Northern Ireland Assembly to the Judicial Committee of the Privy Council if he is unsure if they are within the legislative competence of the Assembly. The Attorney General for Northern Ireland will continue to have the same power.

180. Paragraph 2 makes amendments to the Northern Ireland Act 1998, in order to involve both the Advocate General for Northern Ireland and the Attorney General for Northern Ireland in the institution and defence of proceedings in relation to devolution issues. Paragraphs 3 and 4 amend corresponding provisions in the Scotland Act 1998 and the Government of Wales Act 1998 to substitute references to the Attorney General for Northern Ireland.

181. Paragraph 11 makes arrangements for the carrying out of the functions of the Attorney General in the event that the operation of the Northern Ireland Assembly is suspended under the Northern Ireland Act 2000 after the devolution of justice functions. If that were to happen, the Attorney’s functions would be exercised by the Advocate General for Northern Ireland for the duration of the period of suspension. If, at any stage after devolution the post of Attorney General for Northern Ireland is vacant, paragraph 12 requires the First Minister and deputy First Minister to consult the Advocate General before filling the post temporarily.

182. Under paragraph 14, it is for the Advocate General for Northern Ireland to appoint the Crown Solicitor for Northern Ireland. The holder of this post represents the Crown in civil matters in Northern Ireland. As many of these fall within the “excepted” field the power to appoint an individual to hold this post should be for the Advocate General for Northern Ireland to exercise.

183. Under paragraphs 18 to 20 it will become the responsibility of the Advocate General for Northern Ireland to appoint special advocates to represent prisoners in front of the Sentence Review Commissioners on those occasions where the prisoners themselves are not allowed to appear. Special advocates are also used in tribunals convened under section 91(7) of the Northern Ireland Act 1998.

184. Paragraphs 21 to 23 make changes to the Terrorism Act 2000 so that it will be the responsibility of the Advocate General for Northern Ireland to determine the mode of trial for proceedings for a scheduled offence. These are tried in Northern Ireland by means of the Diplock court system. It would be for the Advocate General for Northern Ireland to determine in each case whether the context of the offence indicates that it should be tried by a judge sitting alone or by a judge with a jury. If he determines that it should go through the more standard procedure, the Advocate General for Northern Ireland would then issue a certificate to remove that case from the Diplock system. The prosecution would then proceed as with other, non-scheduled offences and be purely the responsibility of the prosecution service from that point onwards.

185. Paragraphs 24 to 36 make changes to those offences which currently require the consent of the Attorney General before a prosecution can be undertaken. It would not be consistent with the independence of the new prosecution service for the local Attorney to make decisions as to whether prosecutions should go ahead, particularly when the Criminal Justice Review Group recommended that the local Attorney should have no power to direct the prosecutor on individual cases (paragraph 4.162 of the Review). Accordingly, the power of the Attorney to consent to prosecutions will be transferred to the Director of Public Prosecutions, except in those cases when the offences are related to “excepted” matters (as set out in Schedule 2 to the Northern Ireland Act 1998). The provisions in these paragraphs transfer the power to give consent in cases related to “excepted” matters to the Advocate General for Northern Ireland.