Debate contribution: Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022: Appeal

Debate contribution by Mrs Naomi Long on 2 July 2024.

MLA

Mrs Naomi Long

Party at the time

Alliance Party

Date

2 July 2024

Type

Debate contribution (made as a minister)

Business

Question for Urgent Oral Answer

Heading

Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022: Appeal

Assembly identifier

Official Report component 4529303

Read the official Assembly record

Text

The report in the 'Belfast Telegraph' that I am appealing the judgement is factually incorrect. I have made no decision as yet on appeal. In my consideration of the way forward and informed by legal opinion, I wrote to Executive colleagues on 28 June to make them aware of the consequential impacts of what is a profound constitutional ruling by the court that will have repercussive impacts across every Stormont Department and the legislative process and to seek their views on that point. The legal advice available to me makes it clear that there are potentially far-reaching ramifications for the Assembly and all Departments. This is the first time that the High Court has used the power in section 6 of the Northern Ireland Act 1998 to declare provisions to be outside the legislative competence of the Assembly and not law. It would be hugely remiss of me not to make my Executive colleagues aware of the extent of the judgement in that respect. The court judgement declared that sections 12 to 14 of the Justice (Sexual Offences and Trafficking Victims) Act (Northern Ireland) 2022 are not law, as they are outside the legislative competence of the Assembly, since they are incompatible with the applicant's article 10 rights. That incompatibility finding is a very narrow one that could be addressed in a number of ways, including by legislative amendment. Those sections are not the reason for any potential appeal. I intend to give further consideration to a Justice-specific response to that aspect of the judgement, irrespective of any decision about whether to take forward an appeal. The judgement imposes a high standard of rationality on the reasoning in the Assembly and Committee debates during the passage of legislation. That is likely to generate future challenges to legislative competence based on a forensic dissection of the quality and rationality of Assembly and Committee debates. That is a finding that imposes a threshold standard on the legislative process that will be difficult to meet in practice. The approach taken by the court risks undermining the effectiveness of the Assembly. The assumption that a matter not debated has not been adequately considered is not in line with the reality of the operation of the political scrutiny process, which cannot be fully considered by simply reading Hansard or Committee minutes. It is on those constitutional matters and their potential impacts alone that I sought the views of Executive colleagues. While any decision on an appeal is for me to take, it is important, given the wider ramifications identified, that I consider their responses before making any decisions as to the way forward. The deadline for responses is 5.00 pm today. When I have reached a decision, I will ensure, as I previously promised, that I notify MLAs as a matter of urgency.

Perhaps, if the Member read the judgement rather than the 'Belfast Telegraph', he would have a better grasp of what the issues are. The judge did not find that post-death anonymity was inappropriate or that the matter was outwith the legislative competence of the Assembly. The judge found that there was inadequate opportunity to challenge, during the lifetime of a suspect, the ability to publish their details. As I have already said clearly, there are legislative fixes for both, either or none of those issues. That is not the issue on which I was consulting Executive colleagues.

That is a matter for another day. The pressure currently before the Department is to decide whether the overall judgement should be appealed on the basis of the constitutional issues that arise and flow from it. However, as I have said, there are opportunities, including during this term, to redress the imbalance that the court decided on. Alternatively, the sections being struck down means that they are no longer in operation. Therefore, we could simply allow the Act to continue as is: with no control whatsoever over the publication of the names of people who have been accused of but not charged with or convicted of an offence.

I am glad that the Chair of the Committee has asked an insightful question on cost, because it is important. The costs to the Department of the judicial review up to this point have not been significant. The cost to the Department of any appeal would be similar. Consideration of costs will, of course, form part of my consideration on the way forward. However, the substantive consequential impacts of the judgement will be the primary factor in my decision. The cost to the public purse and to the Assembly and Committees of having to spend time taking evidence on and debating and minuting exchanges on sections that are non-controversial and widely agreed would, in all likelihood, be way more significant than the cost of any appeal. I have to weigh up all those factors and the degree to which there is consensus around the Executive table on whether this is a matter of importance. Ultimately, that is the consideration that I will get after the deadline of 5.00 pm this evening.

I have, indeed, had representations from and a direct meeting with a number of bodies that represent people who are in that space. There was no intention by me as Minister, my officials, Sir John Gillen, who asked that there be anonymity up to the point of charge, or any Member of the House who passed that legislation to cause any harm or distress to any victim; quite the contrary. The Justice (Sexual Offences and Trafficking Victims) Bill was brought forward with a view to enhancing the protections for victims in court and in wider society. It is important that we reflect on that. I am absolutely clear that there was no intention on anyone's part to cause harm, nor would I ever wish to do so.

The Member has raised two issues. First, should I take my legal advice from the KC and senior counsel who are intimately engaged with the case or from an editorial of a newspaper? The answer to that should be clear even to the person who asked the question. I will base my decision on legal advice and not on opinion or editorialisation of the matter. There have been unhelpful mistruths and miscommunications on what has been asked. It would be helpful if people returned to the original judgement when looking at the matter. In respect of my ability to take forward an appeal as Justice Minister, it is clear that I do not need Executive approval. At this stage, the decision is mine to make, because the primary finding was for DOJ and was therefore not a cross-cutting issue. However, I have recognised that the matter is of significant importance and have made Executive colleagues aware of the wider constitutional matters raised in the judgement and sought their point of view. I will take those views into account when considering the correct way forward.

1,155 words. Text as published by the Northern Ireland Assembly.

Assessment

Not flagged

Jev’s structured answers

Assessed 21 October 2026 at 10:57 UTC by jev-1.13.0 (requested as typesafe/jev) under rubric 2026.10-r9, methodology 1.9.

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