Select Committee on Delegated Powers and Deregulation Twenty-Fifth Report


14 JULY 1999

By the Select Committee appointed to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents laid before Parliament under section 3(3) of the Deregulation and Contracting Out Act 1994 and on draft orders laid under section 1(4) of that Act; and to perform, in respect of such documents and orders, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.



1.  The key provisions of the Northern Ireland Act 1998 on which this Bill would operate are not at present in force, and neither are the associated international agreements. An Assembly was elected in Northern Ireland on 25 June 1998, and first met on 1 July 1998. The Assembly operates, in advance of devolution, in accordance with Standing Orders determined by the Secretary of State under the Northern Ireland (Elections) Act 1998. Meanwhile, direct rule continues in Northern Ireland on the foundation of the Northern Ireland Act 1974, under which executive functions are carried out under the control of the Secretary of State, and there are special powers of legislation for Northern Ireland by Order in Council.[1]

2.  This bill makes provision for the suspension of devolved government in Northern Ireland in the event of failure to meet a commitment relating to decommissioning or devolution or a failure to take a step covered by the "failsafe" clause in paragraph 5 of the Joint Statement by the British and Irish Governments (the text of this Statement is set out in Schedule 2 to the bill). The bill contains a number of delegated powers.

3.  As the bill is being considered by Parliament with particular speed, the Committee is issuing this report initially in typescript. The matters covered in this report are, as always, limited by the Committee's restricted terms of reference.

Clause 1(2)

4.  If it is necessary to suspend devolved government for any of the reasons specified in subsection (1) of clause 1, subsection (2) requires the Secretary of State to make a suspension order. The consequences are set out in the subsection. Subsection (5)(a) allows the order to make "such consequential, incidental and supplementary modifications of enactments as appear to the Secretary of State to be necessary or expedient." Subsection (5)(b) attracts negative procedure.

5.  The bill is making provision for the government of Northern Ireland should there be a breakdown in the agreement on which devolution rests. In such circumstances direct rule is inevitable and the arrangements for it have to be made immediately. While this comment applies to the bill generally, it applies with particular force to the legal step which marks the transition. The Committee accepts that the delegation in clause 1(2) is appropriate and that negative procedure is also appropriate in spite of the necessary width of subsection (5)(a) which makes this a Henry VIII power and would in other contexts raise the question whether affirmative procedure would be more appropriate.

Clause 2(1)

6.  The bill is constructed on the basis that devolved government may have to be suspended but clause 2(1) allows the Secretary of State to restore it by making an order appointing a day for the end of the suspension period. Again it is necessary to take Henry VIII powers (subsection (3)) but as there may well be time for Parliament to debate the proposals, the clause provides affirmative procedure while allowing an "emergency" procedure under which the order can be made but expires unless approved by both Houses within 40 days (subsections (4) and (5)). The Committee is satisfied that this provides for appropriate parliamentary control.

Clause 5

7.  This clause is concerned with the implementation bodies established under the Northern Ireland Act 1998. During a suspension period the functions of such a body so far as they relate to Northern Ireland will have to be transferred to a Northern Ireland department. Subsection (1) requires the Secretary of State to make an order transferring the functions and subsection (2) requires her to transfer the functions back again after the suspension period has come to an end. Subsection (3) allows an order to make consequential, supplementary and transitional modifications of enactments. This is a Henry VIII power but within very narrow limits and the Committee accepts that negative procedure (provided by subsection (3)(b)) is appropriate.

Schedule 1

8.  Paragraph 1 enables legislation for Northern Ireland to be made by Order in Council during the first six months of a suspension period as provision cannot be made by Act of the Assembly. Legislation by Order in Council has been a feature of direct rule and the characteristics of paragraph 1 are already familiar. Sub-paragraphs (3) and (4) provide for affirmative control subject to an emergency procedure. Subsection (7) allows the six month period specified in sub-paragraph (1) to be extended by order subject to affirmative procedure (sub-paragraph (8)). Both powers in paragraph 1 are Henry VIII powers but delegation and Parliamentary control are appropriate.

9.  Paragraph 3 deals with subordinate instruments which, but for the suspension order, would come before the Assembly. Sub-paragraph (2) converts Assembly affirmative procedure into Westminster negative procedure.

10.  Paragraph 7(3) amends the Audit (Northern Ireland) Order 1987 to convert the requirement for a resolution of the Assembly into an order of the Secretary of State which is subject to negative procedure.

11.  Paragraph 8 requires accounts, reports and other documents which have to be laid before the Assembly to be laid instead before the House of Commons (sub-paragraph (2)) or both Houses (sub-paragraph (3)). Sub-paragraph (3) is limited to documents prescribed by order of the Secretary of State and sub-paragraph (4) applies negative procedure to the order.


12.  There is nothing in the bill which the Committee wishes to draw to the attention of the House.

1   Explanatory Notes to the Bill, paragraph 7. Back

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