“underpinning the devolution of policing and justice matters”

Worth noting that among the items the NI Assembly voted to remain reserved today is the “politically motivated” Serious Organised Crime Agency [SOCA]. Meanwhile, the Assembly and Executive Review Committee has published its second report on devolution of policing and justice [volume 1 here, volume 2 here]. Included in Appendix 4 are the “Agreements, Concordats, Protocols and Memoranda of Understanding underpinning the devolution of policing and justice matters”. Of particular interest, the national security protocols which NI Secretary of State Shaun Woodward had, for some time, resisted providing to the committee. You need to scroll down from here to find the relevant section – “Handling Arrangements for National Security Related Matters after Devolution of Policing and Justice to the Northern Ireland Executive”.

1. After devolution of policing and justice, the Northern Ireland Minister of Justice (hereafter referred to as the Minister of Justice) will be responsible for policing and criminal justice policy[1].The Secretary of State remains responsible for national security matters. The Transfer of Functions Orders set out in more detail what this means in practice in terms of the full range of functions which will devolve and the small number of functions which will remain with the Secretary of State.

2. It is recognised that national security related issues may touch on the responsibilities of the Minister of Justice. This protocol sets out arrangements for managing this issue so as to ensure that the NI Executive and the UK Government can each carry out their respective responsibilities effectively and that national security issues are properly protected.

Some further extracts of interest

What is ‘national security’?

3. ‘National security’ relates to the safety and security of the state and its people. ‘The protection of national security, and the carrying out of other related activities in the interests of national security, are in law the functions of the Security and Intelligence Agencies (“SIAs”), accountable to Ministers in the UK Government.

General Principles

4. Constitutionally, national security is an excepted matter under section 4 of and Schedule 2 to the Northern Ireland Act 1998 (“the 1998 Act”). It is not, therefore, among those matters devolved to the Northern Ireland Assembly.

5. Issues will arise within the transferred policing and justice field which have a national security dimension or which touch on national security related issues. Therefore, there will be a need for consultation and the sharing of information between the Secretary of State and the Minister of Justice. It is the responsibility of the UK Government to determine what information pertaining to national security can be shared and on what terms it is provided. Information which, if made public, might hinder the ability of the SIAs to perform their functions, or which might reveal the operations, investigations, sources, techniques or methodologies of the SIAs or of other agencies that use the same techniques or methodologies will not be shared. [added emphasis]

And

NIO historic records

10. All records created by the NIO prior to devolution, whether they are held electronically or on paper files, remain Crown Public Records and continue to be subject to the Public Records Act 1958. The NIO therefore retains ownership of and control of access to all pre-devolution records.

11. To facilitate the smooth operation of the Department of Justice (DOJ), and to ensure good governance, the NIO will provide access for DOJ officials to those pre-devolution NIO records relating to matters that are now devolved that are necessary for them to carry out their post-devolution functions effectively. DOJ officials will have no access to pre-devolution NIO records that relate to matters that remain the responsibility of the UK Government, including records that relate to matters of national security.

12. For the purposes of the Freedom of Information Act 2000 (FOIA), any pre-devolution NIO records that are held by the DOJ will be deemed to be held by the DOJ “on behalf of” the NIO. Under the FOIA, information held by one public authority on behalf of another is considered, for the purposes of the Act, to be held by the originating body, and they are the decision making body. Therefore, when a person requests access to information held on pre-devolution NIO records that are on loan to the DOJ, it will be for the NIO to provide the response to the applicant and apply any exemptions or public interest test that might be necessary. [added emphasis]

There is an annex to the above Protocol – Arrangements for Managing Issues which are National Security Related or Which Have a National Security Dimension

1 Counter-Terrorism Policy and Legislation

1.1 UK-wide counter-terrorism legislation applies in Northern Ireland and remains the responsibility of the UK Government. In pursuance of that responsibility, the UK Government works with the PSNI and other agencies in the policing and justice field on issues relating to counter terrorism and other reserved or excepted functions.

And

2 Contingency planning and crisis management

2.1 These matters are devolved. Northern Ireland Executive Ministers lead in the planning and government response to any event that does not involve a national security dimension. Where a crisis or public order situation is national security related, it remains the responsibility of the devolved administration to manage the devolved government agencies’ response in close liaison with the NIO which leads on any issues relating to reserved or excepted matters including deployment of the armed forces, co-ordination across national government, UK wide media handling and international implications.

2.2 The police operational response, including any request for military assistance, is a matter for the Chief Constable who has operational responsibility and is independent consistent with the arrangements in place between the Home Secretary and other Chief Constables. [added emphasis]

3 Policing

3.1 The Independent Commission[2] on Policing in Northern Ireland recommended that responsibility for policing be devolved to the NI Executive, except for matters of national security. Post devolution of policing and justice, the Chief Constable, while remaining operationally responsible, will be accountable to the Minister of Justice on all aspects of PSNI work save that he or she will continue to be accountable to the Secretary of State (representing the UK Government) for those aspects of the PSNI’s work – past, present or future – that have a national security element or dimension. Where the practical consequences of this impact on the role and responsibilities of the Minister of Justice he/she will be given access to relevant information in accordance with the principles set out in para 5 above including through the arrangements which will be put in place for the Chief Constable to brief the Minister of Justice on the security situation in Northern Ireland. The powers and responsibilities of the Policing Board have not been altered as a result of devolution or of this document.

3.2 The Minister of Justice is responsible for the process of appointing the Police Ombudsman (“PONI”) and for sponsoring his/her office (although the appointment is made formally by HM The Queen on the recommendation of the First Minister and deputy First Minister). In relation to all devolved matters PONI reports to the Minister of Justice. In relation to reserved or national security matters, PONI reports to the Secretary of State and the Secretary of State may issue guidance to PONI on matters relating to national security. [added emphasis]

And a final extract

15 Organised crime

15.1 Organised crime remains a PSNI operational lead and the established procedures for management of national security information govern the passage of information from the SIAs to the PSNI. As in other areas, devolved Ministers will have access to relevant information in accordance with the principles set out in paragraph 5 above [in the protocol] to assist them in the effective conduct of their responsibilities. [added emphasis]

Particularly important in a situation where “a good friend” may be involved…