Select Committee on Delegated Powers and Deregulation Twenty-Fifth Report


ANNEX


NORTHERN IRELAND BILL

Memorandum by the Northern Ireland Office

Introduction and scope

1.  This memorandum identifies each provision of the Northern Ireland Bill which gives powers for delegated legislation. It explains in each case the purpose of the power, the reason why it is to be left to delegated legislation, and the nature and justification for any parliamentary procedures which apply.

Purpose of the Bill

2.  The Bill is intended to give effect to the "Failsafe clause" in the joint statement on the way forward in Northern Ireland which was made on 2 July 1999 by the British and Irish Governments (the "Joint Statement"). The statement is set out in Schedule 2 to the Bill. The Bill accordingly provides for the suspension of institutions in accordance with the Joint Statement, the restoration of devolved government, and arrangements during the suspension period.

CLAUSE 1(2) - DUTY TO MAKE A SUSPENSION ORDER

3.  Where section 1 applies, the Secretary of State is required to make a suspension order under subsection (2). The circumstances in which the duty to make a suspension order is triggered are set out in subsection (1).

4.  Paragraphs (a) to (d) of subsection (2) set out the provision to be made in a suspension order -

(a) preventing the passing of any Act by the Assembly during the suspension period, and limiting its ability to meet;

(b) preventing any person from holding office or being elected, nominated or appointed as a Minister or junior Minister, or as a chairman or deputy chairman of a statutory committee;

(c) as to the non-exercise of various functions conferred by the Northern Ireland Act 1998 in relation to the North-South Ministerial Council, the British-Irish Council and the British-Irish Intergovernmental Conference; and

(d) as to the non-exercise of the power to confer functions on implementation bodies under section 55(2)(b) of that Act.

5.  A suspension order may also make such consequential, incidental and supplementary modifications of enactments as appear to the Secretary of State to be necessary or expedient: subsection (5)(a). "Enactment" is defined broadly in clause 6(2).

6.  The other effects of a suspension order, including the arrangements for the discharge of legislative and executive functions, are set out in Schedule 1.

7.  A suspension order is to be subject to the negative resolution procedure: subsection (5)(b). Under the terms of the Joint Statement, the suspension of devolved government is intended to be automatic (hence the Secretary of State's obligation to act) and immediate. These features are politically of great importance. In the circumstances, although the order would have wide-ranging effects, it appears wrong to subject the making of the order to prior Parliamentary approval.

CLAUSE 2(1) - POWER TO APPOINT BY ORDER A DAY ON WHICH THE SUSPENSION PERIOD WILL END.

8.  Clause 2(1) confers power on the Secretary of State to appoint by order a day on which the suspension period will end. The period will have started with the making of the suspension order under section 1(2).

9.  In deciding whether to make an order appointing a day for the period to end, the Secretary of State is required to take into account any vote under section 3(3) which is passed with cross-community support: subsection (2).

10.  The order appointing a day for the end of the suspension period may, like the suspension order itself, make such consequential, incidental and supplementary modifications of enactments as appear to the Secretary of State to be necessary or expedient: subsection (3).

11.  Subsection (4) provides for the power to make an order under subsection (1) to be exercisable by statutory instrument, and provides for two alternative methods of Parliamentary control. Either the Order must be approved in draft by resolution of each House of Parliament before it is made: subsection (4)(a); or the Order must contain a declaration that the Secretary of State considers it expedient for it to be made without a draft having been approved: subsection (4)(b).

12.  Where the second alternative is chosen, the order must be laid before Parliament after being made and will cease to have effect if not approved by resolution of each House at the end of forty days after the date on which it is made. In the normal way, any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days is excluded for the purposes of calculating this period: clause 6(3).

13.  It is considered appropriate to give Parliament a full opportunity to scrutinise and debate the Secretary of State's proposal to bring the suspension period to an end, so triggering the restoration of devolved government and the resumption of ministerial offices under clause 4. In ordinary circumstances, an order under subsection (1) would therefore be subject to the draft affirmative procedure.

14.  There may, however, be circumstances (perhaps during a Parliamentary recess) where it would be undesirable to wait for a sustained period before the resumption of devolved government and the other institutions of the Belfast Agreement could take effect. Politically, much may hang on an early resumption once sufficient agreement has been reached between the parties to permit it. Where the Secretary of State believes it expedient to act promptly, therefore, the order could take effect immediately, but would be subject to later approval by Parliament. The Committee will note that this is arrangement is similar to the frequently-adopted "urgency procedure" (see, for example, paragraph 1(3)(b) of Schedule 1), although the test here is one of expediency that suspension should be ended promptly, rather than urgency.

CLAUSE 5 - IMPLEMENTATION BODIES

15.  Subsections (1) and (2) impose a duty on the Secretary of State to make provision by order in relation to the transfer of functions from, and back to, implementation bodies in circumstances where this is required by arrangements made between the British and Irish Governments.

16.  An implementation body is defined as any body which is, or has at any time been, an implementation body within the meaning of section 55 of the 1998 Act: subsection (4). Six implementation bodies will be established on devolution by the Agreement between the British and Irish Governments establishing Implementation Bodies, done at Dublin on 8 March 1999. Those bodies will acquire functions in domestic law on the appointed day by virtue of the North/South Co-operation (Implementation Bodies) (Northern Ireland) Order 1999 (SI 1999/859).

17.  The Secretary of State's duty to make an order under subsection (1) or (2) will be triggered by arrangements made under an agreement between the British and Irish Governments. It is intended that an agreement to be concluded between the British and Irish Governments will provide that within four months of a suspension the Governments will agree on arrangements for the transfer of the implementation bodies' functions to the relevant Northern Ireland and Irish departments or agencies (referred to here as stage 1). There is to be an exception for those cases where a body exercises functions which were previously discharged on a cross-border basis (as in the cases of the functions of the present Foyle Fisheries Commission, which are due to pass on devolution to an implementation body).

18.  It is intended that the agreement will also require arrangements to be made for the transfer of functions back to the implementation bodies at the end of a suspension period (referred to here as stage 2).

19.  Once the stage one arrangements take effect during a suspension period, the Secretary of State will be required to make an order under subsection (1). The order will give effect to these arrangements in domestic law by transferring from an implementation body to a Northern Ireland Department any functions which fall to be so transferred under the arrangements.

20.  Similarly, once the stage two arrangements take effect after a suspension period has come to an end, the Secretary of State will be under a duty to make an order under subsection (2) transferring functions from a Northern Ireland Department back to an implementation body.

21.  Orders under these subsections may also make such consequential etc. modifications of enactments as the Secretary of State considers necessary or expedient: subsection (3)(a).

22.  An order under subsection (1) or (2) will be necessary in order to give effect in domestic law to the UK's international obligations. The negative resolution procedure, provided for in subsection (3)(b), is considered to offer an appropriate level of Parliamentary scrutiny in these circumstances. The principal order under section 55 of the 1998 Act which makes substantive provision in respect of the implementation bodies, noted at paragraph 16 above, has already been approved in draft by Parliament under the affirmative resolution procedure.

SCHEDULE 1

PARAGRAPH 1(1) - POWER TO LEGISLATE BY ORDER IN COUNCIL

23.  This paragraph provides a power to legislate for Northern Ireland by Order in Council during a suspension period. The power is limited to the legislative competence of the Assembly, and the affirmative resolution applies except in urgent cases: sub-paragraph (3).

24.  The power is based on the arrangements enacted for the "interim period" by the Northern Ireland Act 1974, which will be repealed with effect from the day appointed for devolution under the Northern Ireland Act 1998. The degree of Parliamentary control over proposed Orders in Council would be the same during a suspension period as it is during the interim period. As under the 1974 Act, this Order-making power must be periodically renewed by Parliament: see the following paragraph.

PARAGRAPH 1(7) - POWER TO EXTEND THE PERIOD DURING WHICH LEGISLATION MAY BE MADE BY ORDER IN COUNCIL

25.  The power to legislate by Order in Council lasts only for the first six months of any suspension period: sub-paragraph (1). The power may be extended by an Order under sub-paragraph (7), made by the Secretary of State and subject to the affirmative resolution procedure: sub-paragraph (8). An order may extend the power for up to six months.

26.  This compares with the 1974 Act as follows. Under that Act, the interim period (and therefore both the legislative and the executive arrangements during that period) may be renewed for up to one year at a time, by an Order which is subject to the affirmative resolution procedure. Under the Bill, the suspension period itself is indefinite; within that period, the legislative arrangements (but not the executive functions) will lapse after six months if not renewed.

27.  The view is taken that the power to legislate by Order in Council during the suspension period, rather than by Bill at Westminster, is the aspect of the suspension arrangements which should receive periodic scrutiny by Parliament. Renewal would therefore be more frequent than under the 1974 Act. By contrast, the conferring of executive functions on the Secretary of State is an inevitable consequence of the absence, for any period, of devolved government in Northern Ireland and of any alternative institutions upon which to confer them.

PARAGRAPH 8 - ACCOUNTS, REPORTS AND OTHER DOCUMENTS

28.  Sub-paragraph (1) requires certain accounts and reports to be laid before the House of Commons (rather than Parliament, since they are all financial reports) instead of the Assembly during a suspension period. The requirement contrasts with the provision in paragraph 3 whereby any rule requiring documents to be laid before the Assembly has no effect during suspension. (See also paragraph 7, which replaces Assembly approval with House of Commons approval in the appointment of the Comptroller and Auditor General; and paragraph 9, which substitues Parliament for the Assembly in the context of the Ombudsman and the Commissioner for Complaints.)

29.  Sub-paragraph (3) contains an enabling power: the Secretary of State may prescribe accounts, reports and other documents, in addition to those covered by sub-paragraph (1), which are to be laid before Parliament. There are many documents which are required, under various enactments, to be laid before the Assembly. This provision allows the Secretary of State to require those of sufficient importance to be laid before Parliament.

30.  The negative resolution procedure is thought to provide the right level of Parliamentary control for this Order.

13 July 1999


 
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