Select Committee on Delegated Powers and Deregulation Sixth Report


ANNEX

PUBLIC PROCESSIONS ETC NORTHERN IRELAND BILL [HL]

Memorandum by the Northern Ireland Office

Introduction

This memorandum is concerned with delegated powers in the Public Processions etc. (Northern Ireland) Bill which was introduced in the Lords on 16 October 1997. It identifies each provision of the Bill which confers powers for delegated legislation and explains in each case the purpose of the power, the reason why the matter is to be left to delegated legislation and the nature and reason for the procedure selected.

The purpose of the Bill

The Bill amends the laws of Northern Ireland relating to public processions. It implements recommendations contained in the Report of the Independent Review of Parades and Marches presented to the Secretary of State in January 1997. It establishes a body to be known as the Parades Commission, sets out its functions and makes other provision in respect of the powers of the Commission and the Secretary of State regarding public processions.

General Provision affecting delegated powers

Clause 16(1) provides that any power of the Secretary of State to make orders or regulations under the Act, except an order under clause 11, shall be exercised by statutory instrument. Subsection (2) provides that a statutory instrument containing any order or regulations except an order under clause 3(5) or 19(2) or paragraphs 4 of Schedule 2 shall be subject to annulment in pursuance of a resolution of either House of Parliament. Subsection (3) provides that an order or regulations may make different provision for different cases, circumstances or areas and may contain such incidental, supplemental or transitional provisions and savings as the Secretary of State considers appropriate.

Clause 3: functions of the Commission in relation to expressions of cultural identity

Clause 3(1) provides that it shall be the duty of the Commission to keep under review and make recommendations to the Secretary of State concerning the law and practice relating to expressions of cultural identity (as defined in subsection (2)). Subsection (5) provides that clause 3 shall not come into force until such date as the Secretary of State, after consultation with the Commission, may by order appoint.

By virtue of clause 16(1), the power to make an order under subsection (5) is by statutory instrument and, as in the case of commencement orders under clause 19(2), there is no parliamentary procedure. The reason why there is a separate commencement provision for clause 3 is because it is anticipated it will not be brought into force immediately and is unlikely to be brought into force until after the provisions which are subject to commencement orders under clause 19. In addition, the Secretary of State cannot commence clause 3 without consulting the Commission which is not the case for the commencement of other provisions of the Bill.

Clauses 4, 5 and 6 and Schedule 2: Code of Conduct, Procedural Rules and Guidelines

Clauses 4, 5 and 6, provide, respectively, for the Commission to issue, keep under review and from time to time revise, a Code of Conduct, a set of Procedural Rules and a set of Guidelines.

Clause 4(1) provides that the Code of Conduct shall provide guidance to persons organising a public procession and regulate the conduct of those organising it or taking part in it.

Clause 5(1) provides that the Procedural Rules shall regulate and prescribe the practice and procedure to be followed by the Commission in exercising its functions mentioned in clause 2(2)(a) or (b) (mediation between parties and issuing determinations) and by other persons or bodies in their dealings with the Commission in connection with the exercise of those functions.

Clause 6(1) provides that the Guidelines shall concern the exercise of the Commission's functions under clause 8 (power to impose conditions on public processions).

Schedule 2 sets out the procedure to be followed in relation to the first issue and subsequent revision of the Code of Conduct, the Procedural Rules and the Guidelines ("relevant instrument"). In relation to the first issue of a relevant instrument, paragraph 2 provides that, as soon as practicable after it is established, the Commission shall prepare a draft, submit the draft to the Secretary of State and make such modifications to the draft as the Secretary of State, after consultation with the Commission, may require. Paragraph 3 provides that the Commission shall then send the draft to the Secretary of State who shall lay it before each House of Parliament. Paragraph 4 provides that a relevant instrument laid in draft before Parliament shall not come into operation except in accordance with an order made by the Secretary of State. Paragraph 5 provides that such an order shall be subject to the draft affirmative resolution procedure.

In relation to the revision of a relevant instrument, paragraph 6 of Schedule 2 provides that the Commission shall prepare and publish a draft, shall consider any representations made to it about the draft and may modify it accordingly. Paragraph 7 provides that the Commission shall then submit the draft of the revised relevant instrument to the Secretary of State, after consultation with the Commission, and make such modification to it as the Secretary of State may require. Paragraph 8 provides that the Commission shall then send the revised draft to the Secretary of State who shall lay the draft before each House of Parliament. Paragraph 9 provides that the draft shall not come into operation except in accordance with an order made by the Secretary of State. By virtue of clause 16(2) the negative resolution procedure applies to such an order.

The reason why it is considered appropriate to make provision for a Code of Practice, a set of Procedural Rules and a set of Guidelines by means of delegated legislation is that it seems likely that the contents of a relevant instrument will need to be changed in due course to reflect experience gained by the Commission in applying its statutory functions in this controversial and sensitive field once the Bill comes into force. In addition, it is considered to be an advantage that a relevant instrument will not be constrained by the formal language which is appropriate in the drafting of a statute or a statutory instrument. This will help to ensure that the matters governing the exercise of the Commission's functions will be understood easily by those affected by its decisions.

The reason why the draft affirmative resolution procedure has been chosen for the first issue of a relevant instrument is because the Bill gives the Commission extensive powers in the public order field (powers which were previously exercised by the Royal Ulster Constabulary). The relevant instruments will have a significant influence on the way the Commission exercises these powers. For that reason it is thought that Parliament would wish to have the right to debate them before they come into force. Unlike in the case of the revision of a relevant instrument, there is no provision for public consultation before a relevant instrument is first issued. That is because it is considered important that the Bill comes into force before the start of the marching reason next year and there would not be time for a formal public consultation process. However, copies of all these relevant instruments in draft will be published in the library of the House on introduction of the Bill so that the provisions of the Bill can be debated in full knowledge of the factors which will determine the way it will be implemented. A copy of the draft relevant instruments is annexed to this memorandum.

Although there will have to be a public consultation procedure before a relevant instrument can be revised, it is not thought that the same degree of Parliamentary scrutiny is necessary when the instrument is revised. It is also envisaged that it will be frequently amended although these amendments are not expected to be substantive. It is for this reason that paragraph 9 of Schedule 2 combined with clause 16(2) makes provision for the negative resolution procedure to apply in relation to revisions of a relevant instrument.

Clause 7 (3)(a): advance notice of public processions

Clause 7(1) provides that a person proposing to organise a public procession shall give notice of that proposals to a member of the Royal Ulster Constabulary. Subsection (3) provides that the notice shall be given in writing in such form as may be prescribed by regulations made by the Secretary of State and be signed by the person giving the notice. Subsection (4) sets out the matters which the prescribed form must require a person giving the notice to specify and subsection (7) makes it an offence to organise or take part in a public procession without complying with the notice requirements.

Subsection (5) provides that clause 7 does not apply where the procession is a funeral procession or a procession of a class or description specified by an order made by the Secretary of State.

By virtue of clause 16(2), the negative resolution procedure applies to regulations made under subsection (3) or to an order made under subsection (5).

Article 3 of the Public Order (Northern Ireland) Order 1987 (SI 1987/463) ("the 1987 Order") (as amended by the Public Order (Amendment) Order 1997 (SI 1997/1181)), which clause 7 replaces, already makes provision for a prescribed form of notice and order and this is subject to the negative resolution procedure. For this reason, it was considered appropriate for the negative resolution procedure to apply to clause 7.

Clause 11(1): powers to prohibit processions

Clause 11(1) enables the Secretary of State by order to prohibit the holding of a public procession having regard to factors such as public disorder. He may prohibit an individual public procession (subsection (1)), or, for up to 28 days, a class or description of public processions (subsection (2)) or all public processions (subsection (3)). Before making such an order, the Secretary of State must consult the Commission and the Chief Constable as well as the Committee of the Police Authority for Northern Ireland. It will be an offence to organise or take part in a public procession prohibited by an order under subsection (1).

The power of the Secretary of State by order to ban a parade or to impose a blanket ban is presently provided for in article 5 of the 1987 Order and indeed the existing power enables the Secretary of State to impose a blanket ban for up to three months (compared with 28 days in clause 11). There is no Parliamentary procedure required for the exercise of the existing power because of the operational need for the Secretary of State to be able to act quickly when the need arises. For the same reason, there is no Parliamentary procedure provided for in relation to the clause 11 powers.

Clause 12(1): registration of bands

Clause 12(1) provides that the Secretary of State may by order provide for the registration of bands and subsection (2) provides that such an order can include making applications for registration to a court and the procedure for making and hearing such applications. Subsection (4) makes it an offence to take part in a public procession as a member of a band which is one to which an order applies and which is not registered. By virtue of clause 16(2) the negative resolution procedure applies to an order under subsection (1).

The reason why the registration of bands is to be provided for in delegated legislation is because it is considered that the proposed powers will only be necessary if the other powers conferred by the Bill on the Commission prove inadequate.

Article 6 of the 1987 Order already provides that the Secretary of State may by order provide for the registration of bands and this is subject to the negative resolution procedure. Clause 12 extends the existing power to cover applications for registration to a court but it is not considered that this requires a greater degree of Parliamentary scrutiny.

Clause 19 (2): Commencement etc.

Clause 19(2) contains the standard power to bring provisions of the Bill into force by order which, by virtue of clause 16(1), will be by statutory instrument. As is customary with commencement orders, there is no Parliamentary procedure (clause 16(2)).

Schedule 1, paragraphs 2(2) and 12 (6)

Schedule 1 makes provision in relation to the Commission. Paragraph 2(1) provides that the Commission shall consist of a chairman and not more than 6 other members appointed by the Secretary of State. Sub-paragraph (2) provides that the Secretary of State may by order amend sub-paragraph (1). Paragraph 12 makes provision in relation to the accounts and audit of the Commission.

Sub-paragraph (5) provides that the financial year of the Commission shall run for 12 months from the end of 31st December and but the first financial year shall run from the establishment of the Commission and end with the next 31st December. Sub-paragraph (6) provides that the Secretary of State may by order amend sub-paragraph (5). By virtue of clause 16(2), the negative resolution procedure applies.

The powers in paragraphs 2(2) and 12(6) are designed to give the Secretary of State the flexibility to make changes to the Commission's membership and to its financial year should this be desirable in due course. These are uncontroversial matters for which the negative resolution procedure is considered appropriate.




 
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Prepared 6 November 1997