The Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010

Police (Northern Ireland) Act 1998

8.  Amend the Police (Northern Ireland) Act 1998(1) as follows.

9.  In section 25(2) (regulations for PSNI) in subsections (1), (2)(i), (5)(a), (7) and (8) for “Secretary of State” substitute “Department of Justice”.

10.  In section 26(3) (regulations for PSNI Reserve) in subsections (1), (5)(a) and (6) for “Secretary of State” substitute “Department of Justice”.

11.  In section 27(1)(a)(4) (members of PSNI engaged on other police service) for “Secretary of State” substitute “Department of Justice”.

12.  In section 28(5) (the Police Fund) in subsections (1) and (2) for “Secretary of State” substitute “Department of Justice”.

13.  In section 29(6) (liability for wrongful acts of constables)—

(a)in subsection (7)(c) for “Secretary of State” substitute “Department of Justice”; and

(b)omit subsection (8).

14.  In section 31(4) (regulations for disposal of property which has come into the possession of the police) for “Secretary of State” substitute “Department of Justice”.

15.  In section 32(5) (Police Association for Northern Ireland)—

(a)for “Secretary of State” substitute “Department of Justice”; and

(b)for “he” substitute “the Department of Justice”.

16.  In section 33(7) (regulations for Police Association), in subsections (1), (2)(c) and (d) and (3) for “Secretary of State” substitute “Department of Justice”.

17.  Omit section 34(1) (amendment relating to the Police Negotiating Board for the United Kingdom).

18.  In section 35(4) (membership of trade unions) for “Secretary of State” substitute “Department of Justice”.

19.  In the heading to Part 5 (functions of Secretary of State) after “Secretary of State” insert “and Department of Justice”.

20.  In section 40(8) (power to require use by police of specified facilities, equipment or services)—

(a)in subsection (1)—

(i)for “Secretary of State” substitute “Department of Justice”, and

(ii)for “he” substitute “the Department of Justice”; and

(b)in subsection (2) for “Secretary of State” substitute “Department of Justice”.

21.  In section 41(9) (appointment of inspectors of constabulary)—

(a)in subsection (1)—

(i)for “Secretary of State” substitute “Department of Justice”, and

(ii)for “he” substitute “the Department of Justice”;

(b)in subsections (2), (4) and (5) for “Secretary of State” (wherever occurring) substitute “Department of Justice”;

(c)in subsections (3A) and (3B) for “Secretary of State” substitute “appropriate authority”;

(d)after subsection (3B) insert—

“(3C) In subsections (3A) and (3B) “the appropriate authority” means, in relation to any inspection—

(a)the Secretary of State, if the inspection relates (in whole or in part other than incidentally) to an excepted matter or reserved matter or to a matter in respect of which a function is conferred or imposed on the Secretary of State by or under a statutory provision;

(b)otherwise, the Department of Justice;

and in paragraph (a) “excepted matter” and “reserved matter” have the meanings given by section 4 of the Northern Ireland Act 1998(10).”

22.  After section 41 insert—

“41A    Powers of Secretary of State in relation to reports and other duties of inspectors of constabulary

(1) For the purposes of subsections (2) to (8) information is “protected information” if the inclusion of the information in a report of the inspectors under section 41 would be against the interests of national security.

(2) If it appears to the Secretary of State that—

(a)the inspectors are required to prepare a report under section 41 (other than a report on an inspection required by the Secretary of State under section 41(3A)), and

(b)the report might contain (or once completed might contain) protected information,

the Secretary of State may require the inspectors to refer the report to the Secretary of State (or, if the report is not completed when the requirement is imposed, to refer the report once it is completed).

(3) The Secretary of State must, within—

(a)the period of 30 days after the date on which the inspectors refer the report to the Secretary of State, or

(b)such longer period as may be agreed between the Secretary of State and the Department of Justice,

notify the inspectors whether, in the opinion of the Secretary of State, the report contains any protected information.

(4) If—

(a)it appears to the inspectors that a report under section 41 (other than a report on an inspection required by the Secretary of State under section 41(3A)) might contain protected information, and

(b)the inspectors have not been required to refer the report to the Secretary of State under subsection (2),

the inspectors must refer the report to the Secretary of State.

(5) The Secretary of State must, within—

(a)the period of 30 days after the date on which the inspectors refer the report to the Secretary of State, or

(b)such longer period as may be agreed between the Secretary of State and the Department of Justice,

notify the inspectors whether, in the opinion of the Secretary of State, the report contains any protected information.

(6) Where the Secretary of State has required that a report be referred to the Secretary of State under subsection (2), or the inspectors are required under subsection (4) to refer a report to the Secretary of State, the inspectors must not disclose the report to anyone apart from the Secretary of State, except—

(a)in accordance with subsection (7),

(b)after being notified by the Secretary of State that, in the opinion of the Secretary of State, the report does not contain any protected information, or

(c)after the period mentioned in subsection (3) or (5) has expired without any notification being given by the Secretary of State.

(7) Where the Secretary of State notifies the inspectors under subsection (3) or (5) that, in the opinion of the Secretary of State, a report contains protected information—

(a)the Secretary of State may direct the inspectors to exclude from the report any information that, in the opinion of the Secretary of State, is protected information,

(b)the inspectors must exclude that information from the report,

(c)the Secretary of State must inform the Department of Justice that the Secretary of State has given a direction under paragraph (a), and

(d)the Secretary of State must lay before Parliament a statement that the Secretary of State has given a direction under paragraph (a).

(8) When the inspectors provide to anyone a report from which information has been excluded under subsection (7), they must at the same time provide the report to the Secretary of State.

(9) For the purposes of subsections (10) to (14) information is “protected information” if it is information that, in the interests of national security, ought not to be disclosed by the inspectors.

(10) If it appears to the Secretary of State that any requirement imposed on the inspectors by the Department of Justice under section 41 may require them to disclose, otherwise than in a report, information that is or includes protected information, the Secretary of State may require the inspectors to refer the matter to the Secretary of State.

(11) If it appears to the inspectors that any requirement imposed on them by the Department of Justice under section 41 may require them to disclose, otherwise than in a report, information that is or includes protected information, they must refer the matter to the Secretary of State.

(12) The Secretary of State must, within—

(a)the period of 30 days after the date on which the inspectors refer a matter to the Secretary of State under subsection (10) or (11), or

(b)such longer period as may be agreed between the Secretary of State and the Department of Justice,

notify the inspectors whether, in the opinion of the Secretary of State, the information in question is or includes protected information.

(13) Where the inspectors are required under subsection (10) or (11) to refer a matter to the Secretary of State, they must not disclose the information in question to anyone apart from the Secretary of State, except—

(a)in accordance with subsection (14),

(b)after being notified by the Secretary of State that, in the opinion of the Secretary of State, the information in question is not or does not include protected information, or

(c)after the period mentioned in subsection (12) has expired without any notification being given by the Secretary of State.

(14) Where the Secretary of State notifies the inspectors under subsection (12) that, in the opinion of the Secretary of State, the information in question is or includes protected information—

(a)the Secretary of State may set aside or modify the requirement imposed by the Department of Justice as the Secretary of State thinks appropriate so that the inspectors are not required to disclose any information that, in the opinion of the Secretary of State, is protected information;

(b)the inspectors must proceed accordingly;

(c)the Secretary of State must inform the Department of Justice that the Secretary of State has taken action under paragraph (a); and

(d)the Secretary of State must lay before Parliament a statement that the Secretary of State has taken action under paragraph (a).”

23.  In section 42(11) (publication of reports of inspectors of constabulary)—

(a)in subsection (1)—

(i)for “Secretary of State” substitute “Department of Justice”, and

(ii)for “him” (in both places) substitute “it”;

(b)in subsection (2)—

(i)for “Secretary of State” substitute “Department of Justice”,

(ii)for “his” substitute “its”, and

(iii)omit “against the interests of national security or”;

(c)in subsection (3) for “Secretary of State” substitute “Department of Justice”;

(d)in subsection (6) for “Secretary of State” substitute “Department of Justice”;

(e)after subsection (6) insert—

“(6A) In relation to a report received by the Secretary of State under section 41(3B)—

(a)subsections (1) to (6) above apply as if references to the Department of Justice were references to the Secretary of State;

(b)under subsection (2) above, the Secretary of State may also exclude from publication under subsection (1) any part of the report if, in the Secretary of State’s opinion, the publication of that part would be against the interests of national security.”

24.  In section 43 (criminal statistics)—

(a)in subsection (1) for “Secretary of State” (wherever occurring) substitute “Department of Justice”; and

(b)in subsection (2)—

(i)for “Secretary of State” substitute “Department of Justice”,

(ii)for “him” substitute “it”, and

(iii)for “he” substitute “it”.

25.  In section 45(12) (research and advice)—

(a)in subsection (1)—

(i)for “Secretary of State” substitute “Department of Justice”, and

(ii)for “him” substitute “the Department of Justice”; and

(b)in subsection (2)—

(i)for “Secretary of State” substitute “Department of Justice”, and

(ii)for “him” (in both places) substitute “the Department of Justice”.

26.—(1) In section 46(13) (expenditure by Secretary of State for police purposes)—

(a)for “Secretary of State” substitute “Department of Justice”, and

(b)for “he” substitute “the Department of Justice”.

(2) In the heading for section 46 for “Secretary of State” substitute “Department of Justice”.

27.  In section 52(14) (receipt and initial classification of complaints) in subsections (1)(b), (6) and (7) for “Secretary of State” substitute “Department of Justice”.

28.—(1) Amend section 55(15) (consideration of other matters by Police Ombudsman) as follows.

(2) In subsections (1) and (7) after “Board” (wherever occurring) insert “, the Department of Justice”.

(3) After subsection (1) insert—

“(1A) The Secretary of State may refer a matter to the Ombudsman under subsection (1) only if it appears to the Secretary of State that the matter relates (in whole or in part) to an excepted matter or reserved matter (within the meaning given by section 4 of the Northern Ireland Act 1998(16)).”

29.  In section 56(2) (power to make provision in relation to investigations by the Police Ombudsman) for “Secretary of State” substitute “Department of Justice”.

30.—(1) Amend section 60(17) (constabularies not maintained by the Policing Board) as follows.

(2) In subsections (1), (2), (3) and (4) for “Secretary of State” substitute “Department of Justice”.

(3) After subsection (6) insert—

“(7) In the application of this section in relation to the Ministry of Defence Police, references to the Department of Justice are to be read as references to the Secretary of State.”

31.  In section 60A(18) (investigations into current police practices and policies)—

(a)in subsection (3) for “Secretary of State” substitute “Department of Justice”;

(b)after subsection (3) insert—

“(3A) Where it appears to the Ombudsman that an investigation may relate wholly or in part to—

(a)a matter in respect of which a function is conferred or imposed on the Secretary of State by or under a statutory provision, or

(b)an excepted matter or reserved matter (within the meaning given by section 4 of the Northern Ireland Act 1998),

the Ombudsman shall also immediately inform the Secretary of State of the matters mentioned in subsection (3)(a) to (c).”; and

(c)after subsection (5) insert—

“(6) The Ombudsman shall send a copy of his report to the Department of Justice, if the investigation relates wholly or in part to a matter in respect of which a function is conferred or imposed on the Department of Justice by or under a statutory provision.”

32.—(1) Amend section 61(19) (reports by Ombudsman) as follows.

(2) In subsections (1) and (2)—

(a)for “Secretary of State” (wherever occurring) substitute “appropriate authority”;

(b)for “Secretary of State’s” substitute “appropriate authority’s”.

(3) After subsection (2) insert—

“(2A) In subsections (1) and (2) “the appropriate authority” means, in relation to any matter—

(a)the Secretary of State, if the matter relates (in whole or in part other than incidentally) to an excepted matter or reserved matter or to a function conferred or imposed on the Secretary of State by or under a statutory provision;

(b)otherwise, the Department of Justice;

and in paragraph (a) “excepted matter” and “reserved matter” have the meanings given by section 4 of the Northern Ireland Act 1998.”

(4) In subsections (3) and (4) for “Secretary of State” substitute “Department of Justice”.

(5) After subsection (5) insert—

“(5A) The Department of Justice shall—

(a)lay before the Northern Ireland Assembly a copy of every report received by the Department under this section; and

(b)cause every such report to be published.

(5B) Section 41(3) of the Interpretation Act (Northern Ireland) 1954(20) applies for the purposes of subsection (5A)(a) in relation to the laying of a copy of a report as it applies in relation to the laying of a statutory document under an enactment.”

33.—(1) Amend section 63(21) (restriction on disclosure of information) as follows.

(2) In subsection (1) for paragraph (b) substitute—

“(b)to the Department of Justice or the Secretary of State;”.

(3) After subsection (3) insert—

“(4) Nothing in subsection (1)(b) permits the disclosure to the Department of Justice of information—

(a)which has been supplied to the Ombudsman under section 66(1) of the Police (Northern Ireland) Act 2000(22) for the purposes of or in connection with an investigation under section 60A of this Act, and

(b)in relation to which the Ombudsman has been informed under section 66(3)(b) of the Police (Northern Ireland) Act 2000 that the information is, in the opinion of the Chief Constable or the Board, information which ought not to be disclosed on the ground mentioned in section 76A(1)(a) of that Act.”

(4) In relation to information supplied to the Ombudsman before the coming into force of this Order, section 63(4)(b) (as inserted by sub-paragraph (3) above) has effect as if the reference to section 66(3)(b) of the 2000 Act were a reference to section 66(3)(b) before its substitution by paragraph 77(2) below.

34.—(1) Amend section 64(23) (regulations) as follows.

(2) In subsections (1), (2), (2A), (3) and (4) for “Secretary of State” substitute “Department of Justice”.

(3) Omit subsection (2A)(d).

35.  After section 64 insert—

“64A    Secretary of State’s power to make regulations

(1) The Secretary of State may make regulations containing provision of any kind within section 64(1), (2) or (2A) for purposes connected with—

(a)excepted or reserved matters (within the meaning given by section 4 of the Northern Ireland Act 1998(24));

(b)matters in respect of which a function is conferred or imposed on the Secretary of State by or under a statutory provision.

(2) The Secretary of State may by regulations provide that, subject to such exceptions as may be prescribed, to the extent that the subject matter of a complaint falls within the jurisdiction of—

(a)the tribunal constituted under section 65(1) of the Regulation of Investigatory Powers Act 2000(25), or

(b)a person appointed under Part 4 of that Act,

the Ombudsman shall not investigate it.

(3) Regulations under this section may authorise the Secretary of State to make provision for any purposes specified in the regulations.

(4) Before making any regulations under this section, the Secretary of State shall consult the Department of Justice and the persons mentioned in section 64(4)(a) to (c).

(5) Regulations made by the Department of Justice under section 64 have effect subject to regulations made by the Secretary of State under this section.”

36.  In section 65(26) (guidance concerning discipline, complaints, etc.)—

(a)in subsections (1), (4) and (5) for “Secretary of State” substitute “Department of Justice”;

(b)after subsection (5) insert—

“(6) In discharging his functions under this Part the Ombudsman shall have regard to any guidance given to him by the Secretary of State with respect to matters the disclosure of which may be prejudicial to the public interest on the ground of national security.

(7) Any guidance given by the Department of Justice to the Ombudsman under this section has effect subject to any guidance given by the Secretary of State under subsection (6).”

37.  In section 66(27) (assaults on constables)—

(a)in subsection (6)(c) for “Secretary of State” substitute “Department of Justice”; and

(b)omit subsection (7).

38.—(1) Amend section 72(28) (orders and regulations) as follows.

(2) In subsection (1) before “the Secretary of State” insert “the Department of Justice or”.

(3) In subsection (2) after “appear to” insert “the Department of Justice or (as the case may be)”.

(4) In subsection (2A) for “Treasury” substitute “Department of Finance and Personnel”.

(5) In subsection (4)—

(a)for “A statutory rule” substitute “An order or regulations”;

(b)omit “one containing”;

(c)for the words from “shall be” to “accordingly” substitute—

“(a)if made by the Department of Justice, shall be subject to negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954(29));

(b)if made by the Secretary of State, shall be subject to annulment in pursuance of a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946(30) shall apply accordingly.”.

39.—(1) Amend Schedule 3(31) (the Police Ombudsman for Northern Ireland) as follows.

(2) In paragraph 1 (the Ombudsman)—

(a)in sub-paragraph (1) after “Her Majesty” insert “on the recommendation of the First Minister and deputy First Minister acting jointly”;

(b)in sub-paragraphs (7), (8) and (9) for “Secretary of State” (wherever occurring) substitute “First Minister and deputy First Minister acting jointly”; and

(c)in sub-paragraph (8) for “him” substitute “them”.

(3) In paragraphs 2 (remuneration) and 3 (staff) for “Secretary of State” (wherever occurring) substitute “Department of Justice”.

(4) In paragraph 2(1) for “he” substitute “the Department of Justice”.

(5) In paragraph 3 (staff)—

(a)after sub-paragraph (2) insert—

“(2A) Employment by the Ombudsman shall be included among the kinds of employment

to which a scheme under Article 3 of the Superannuation (Northern Ireland) Order 1972(32) can apply; and, accordingly, in Schedule 1 to that Order (kinds of employment etc. referred to in Article 3), at the appropriate place in the list of “Other Bodies” insert—

“Employment by the Police Ombudsman for Northern Ireland.”

(2B) Where a person who is employed by the Ombudsman and is by reference to that employment a participant in a scheme under Article 3 of the Superannuation (Northern Ireland) Order 1972 is appointed to the office of Ombudsman, the Department of Finance and Personnel may determine that his service in that office may be treated for the purposes of the scheme as service as an employee of the Ombudsman; and his rights under the scheme shall not be affected by paragraph 2(1).”; and

(b)omit sub-paragraphs (3) and (4) (and the Superannuation Act 1972(33) has effect accordingly).

(6) In paragraph 6 (assistance from Chief Constable)—

(a)in sub-paragraph (2)—

(i)for “Secretary of State” substitute “Department of Justice”; and

(ii)for “he” substitute “the Department of Justice”; and

(b)in sub-paragraphs (3) and (4) for “Secretary of State” substitute “Department of Justice”.

(7) In paragraph 11 (expenses) for “Secretary of State” (in both places) substitute “Department of Justice”.

(8) In paragraph 12 (accounts and statements)—

(a)in sub-paragraph (1)(b) and (c) for “Secretary of State” substitute “Department of Justice”;

(b)in sub-paragraph (1)(c) for “Comptroller and Auditor General” substitute “Comptroller and Auditor General for Northern Ireland”;

(c)in sub-paragraph (2) for “Comptroller and Auditor General” substitute “Comptroller and Auditor General for Northern Ireland”;

(d)in sub-paragraph (2) for “each House of Parliament” substitute “the Northern Ireland Assembly”; and

(e)after sub-paragraph (2) insert—

“(3) Section 41(3) of the Interpretation Act (Northern Ireland) 1954(34) applies for the purposes of sub-paragraph (2) in relation to the laying of a copy of a statement or report as it applies in relation to the laying of a statutory document under an enactment.”

(9) Sub-paragraph (5)(b) above does not affect the position of any person under the Superannuation Act 1972(35) in relation to the person’s employment by the Ombudsman, or the person’s service as the Ombudsman, before the coming into force of this Order.

(10) Sub-paragraph (11) below applies in relation to a person who immediately before the coming into force of this Order is, by virtue of paragraph 3(3) or (4) of Schedule 3 to the Police (Northern Ireland) Act 1998(36), a participant in the principal civil service pension scheme as defined in section 2(10) of the Superannuation Act 1972.

(11) In relation to the person’s employment by the Ombudsman, or (as the case may be) service as the Ombudsman, after the coming into force of this Order, the person is entitled to be a participant in the principal civil service pension scheme as defined in Article 4(10) of the Superannuation (Northern Ireland) Order 1972(37); and the person’s terms and conditions of service have effect accordingly.

(12) Sub-paragraph (8) above does not apply in relation to a financial year ending before the coming into force of this Order.