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. (The Northern Ireland Bill 1999 contained similar
provisions giving power for delegated legislation. The Committee
reported on the provisions of that Bill in its Twenty-fifth Report
(14 July 1999, HL Paper 89).)
PURPOSE OF THE BILL
2. The Bill suspends devolved government in Northern
Ireland. It provides for the operation of the devolved institutions
to be restored (or later suspended again) by order of the Secretary
of State. The Bill sets out the arrangements to be made during
the suspension period.
Clause 2 - ending the period of suspension
3. Subsection (2) enables the Secretary of State
by order to discontinue clause 1 of the Bill and so restore devolved
government. Before making such an order he is required to take
into account the result of the review which subsection (1) requires
him to take steps to initiate under the Validation, Implementation
and Review section of the Belfast Agreement as soon as reasonably
practicable after suspension begins.
4. By virtue of clause 7(2) such an order may
make such consequential, supplemental or transitional provisions
as appear necessary or expedient.
5. By virtue of clause 7(4) a restoration order
is to be subject to the affirmative resolution procedure, save
that, in cases of urgency, it may be made without Parliamentary
approval, but must be laid before Parliament and will cease to
have effect if not approved by each House within forty sitting
days of its being made (clause 7(5) and (6)).
6. It is right that Parliament should be given
the opportunity to approve an order restoring devolved government,
but equally right that the Secretary of State should be able to
act in advance of parliamentary approval if it appears necessary
to do so, for example during a parliamentary recess or if the
Secretary of State judges a prompt resumption necessary for political
reasons. Even so parliamentary approval would still have to be
obtained if the order were not to cease to have effect.
Clause 4 - further suspension of devolved government
7. This clause provides that the effect of an
order made by the Secretary of State revoking a restoration order
made under clause 2(2) is to bring section 1 into force again.
The Secretary of State may thus trigger the suspension of devolved
government on subsequent occasions by order.
8. Any future suspension of devolved government
by this means would merit a high level of Parliamentary scrutiny.
Any order revoking a restoration order will therefore, like the
restoration order itself, be subject to the affirmative resolution
procedure, subject to the ability to make an order under the urgency
procedure as described above in relation to restoration orders
(clause 7(4) - (6)).
Clause 5 - implementation bodies
9. Subsection (1) imposes a duty on the Secretary
of State to make provision by order transferring functions, insofar
as they relate to Northern Ireland, from an implementation body
to a Northern Ireland department in circumstances where this is
required by arrangements made between the British and Irish governments
during a suspension period. Subsection (2) imposes a similar duty
to make an order transferring functions back from a Northern Ireland
department to an implementation body following restoration of
devolved government. Again, the trigger for the Secretary of State's
duty is arrangements made between the British and Irish governments.
10. Six implementation bodies were established
on devolution by the Agreement between the British and Irish Governments
establishing Implementation Bodies done at Dublin on 8 March 1999.
Those bodies acquired functions in domestic law by virtue of the
North/South Cooperation (Implementation Bodies) (Northern Ireland)
Order 1999 (S.I. 1999/859).
11. By virtue of clause 7 orders under clause
5 are to be subject to the affirmative resolution procedure, with
provision for action in advance of Parliamentary approval in cases
of urgency. The procedure is consequently the same as the procedure
applicable to a restoration order.
Clause 6 - power to make consequential provision
12. Clause 6 enables the Secretary of State by
order to make such modifications of enactments as appear to him
to be necessary or expedient in consequence of any provision made
by, or under, the Bill. "Enactment" is defined in clause
8(1) as including a provision of an Act (including the Bill);
a provision of, or of any instrument made under, Northern Ireland
legislation; and a provision of subordinate legislation. The power
is a wide one; but it is necessary to make provision for changes
that may be needed to all forms of legislation in consequence
of suspension or restoration.
13. By virtue of clause 7 orders under clause
6 are, like restoration orders, subject to affirmative resolution,
with provision for the urgency procedure. This seems appropriate:
Parliament should be given the opportunity to debate changes to
legislation, but it may be necessary to act quickly in certain
Clause 9 - commencement
14. Subsection (2) of clause 9 confers power
to bring the Act (apart from subsection (1) and clause 9(2) itself),
into force on a day appointed by order. The order is to be made
by statutory instrument (clause 7(1)) and is not subject to any
Parliamentary procedure (see the exception to clause 7(4)). This
is in line with the normal approach to commencement orders.
Paragraph 1(1) - power to legislate by Order in
15. 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 procedure applies except in urgent
cases: paragraph 2.
16. The power is based on the arrangements enacted
for the "interim period" by the Northern Ireland Act
1974, which was repealed by the Northern Ireland Act 1998. The
degree of Parliamentary control over proposed Orders in Council
will be the same during a suspension period as it was during the
interim period. As under the 1974 Act, this order-making power
must be periodically renewed by Parliament.
17. By virtue of paragraph 1(3) the power to
legislate by Order in Council lasts only for the first six months
of any suspension period. The power may be extended for further
periods of up to six months by an order under paragraph 1(4).
Such an order is subject to the affirmative resolution procedure
by virtue of clause 7(4) (although, in this case, the urgency
procedure is not available - see the exception to clause 7(5)).
18. Under the 1974 Act the interim period (and
therefore both the legislative and the executive arrangements
made during that period) could be renewed for up to one year at
a time by order subject to affirmative resolution. Under the Bill,
the suspension period is potentially indefinite; within that period,
the legislative arrangements (but not the executive functions)
will lapse after six months if not renewed.
19. The view has been taken that the power to
legislate by Order in Council during the suspension period, rather
than by Bill at Westminster, is the aspect of a suspension arrangement
which should receive periodic scrutiny by Parliament. Renewal
is to 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 12 - accounts, reports and other documents
20. Paragraph 12(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 7 whereby any rule requiring documents
to be laid before the Assembly has no effect during suspension.
(See also paragraph 11, which replaces Assembly approval with
House of Commons approval in the appointment of the Comptroller
and Auditor General; and paragraph 13, which substitutes Parliament
for the Assembly in the context of the Ombudsman and the Commissioner
21. Paragraph 12(4) contains an enabling power
under which the Secretary of State may prescribe accounts, reports
and other documents in addition to those covered by paragraph
12(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
22. The negative resolution procedure (clause
7(3) and paragraph 12(5) (this is an inadvertent duplication))
is thought to provide the right level of Parliamentary control
for this order.
7 February 2000