Select Committee on Delegated Powers and Regulatory Reform Twentieth Report


Annex 1

NORTHERN IRELAND ASSEMBLY (ELECTIONS AND PERIODS OF SUSPENSION) BILL

Memorandum by the Northern Ireland Office

1.  This Memorandum is concerned with the Northern Ireland Assembly (Elections and Periods of Suspension) Bill. It identifies each provision of the Bill which confers powers for delegated legislation, and explains in each case why the power has been taken to make delegated legislation, and the nature and reason for the procedure selected.

BACKGROUND AND PURPOSE OF BILL

2.  The purpose of the Bill is to cancel the poll for the election of the next Northern Ireland Assembly which was due to have been held on 29 May 2003, and to provide a mechanism for setting the date of the next poll. The Bill also contains consequential provision to deal with the effects of the postponement taking place after the commencement of the statutory electoral timetable, including the effects on former members of the devolved Assembly; and certain matters relating to the lengthening of the period of dissolution.

3.  The Bill follows intensive negotiations between the UK and Irish Governments and Northern Ireland political parties. These negotiations were aimed at restoring power to the devolved institutions in Northern Ireland, which are currently suspended under the terms of the Northern Ireland Act 2000, and the full implementation of the Belfast Agreement. The Government's judgment is that, in the absence of clarity on an end to paramilitary activity in Northern Ireland, there is not sufficient trust and confidence among the Northern Ireland parties to permit the restoration of functioning devolved institutions immediately following a 29 May election. The postponement is intended to allow the two Governments to continue efforts to rebuild the trust and confidence necessary for the restoration of effective devolved institutions.

Clause 1: Election of next Assembly

Power on conferred on:  The Secretary of State

Power exercised by:    Order made by statutory instrument

Parliamentary procedure:  Laid before parliament after being made

4.  Clause 1 has the effect of cancelling the election due to have been held on 29 May 2003 and of making provision for the Secretary of State to specify the date of the poll for the next election to the Northern Ireland Assembly. Clause 1(2) substitutes a new subsection (2) in section 31 of the Northern Ireland Act 1998 ("the 1998 Act")[3]. The new subsection (2) confers power for the Secretary of State to specify the date of the next election by order. An order under subsection (2), as substituted, must be made by statutory instrument and must be laid before Parliament after it is made (section 96(1A) of the 1998 Act as substituted by clause 1(3)).

5.  The power conferred on the Secretary of State by this clause is a very specific one. The only issue left to the Secretary of State's discretion is which particular date to fix. The Secretary of State intends to make an order setting a date as soon as the Government is satisfied that there is sufficient trust and confidence among the Northern Ireland political parties to permit the restoration and functioning of the devolved institutions. Once this has been achieved the Government would strongly wish to avoid any further delay in the setting of the election date. It might, for example, be necessary to set a date extremely quickly following a sudden political development in Northern Ireland. The need to set a date at a time when Parliament is not sitting, so as to allow for an autumn election, is a distinct possibility. In these special circumstances, the Department considers that it is appropriate to provide only for the order to be laid before Parliament after being made.

6.  It is the Government's wish to proceed to an election as soon as the political circumstances in Northern Ireland allow. It is also the Government's intention that, as soon as a decision is taken to proceed to elections, there should be no further room for uncertainty in Northern Ireland that the election will proceed. In the light of this, the Government has concluded after careful reflection that it would not be appropriate to make this power subject to the draft affirmative procedure. Although such a procedure is often combined with an "urgency procedure" so as allow action to be taken when Parliament is not sitting (see, for example, clause 6 below), the Government considers that it would be damaging to public confidence in Northern Ireland were the final nature of the election date to be surrounded by uncertainty during an election campaign (and indeed possibly even after the election had been held), pending the approval of the order. Similar considerations apply to the negative resolution procedure.

Clause 3: Payments in relation to the May Election

Power on conferred on:  The Secretary of State

Power exercised by:    Administrative scheme

Parliamentary procedure:  None

7.  This clause does not confer a power to make delegated legislation as such, but rather a power for the Secretary of State to make an administrative scheme. It nevertheless is dealt with here for completeness.

8.  Clause 3(1) enables the Secretary of State to make payments to registered parties and candidates in accordance with a scheme. This is so as to permit reimbursement in respect of expenditure they incurred preparing for the cancelled 29 May 2003 election. Clause 3(2) requires the scheme to provide for payments to registered parties and candidates in relation to campaign expenditure and election expenses respectively. Clause 3(3) stipulates the matters which must be covered under the scheme. The Electoral Commission must submit recommendations to the Secretary of State for the terms of the scheme (clause 3(5)) and it is expected that the Commission will consult with the Northern Ireland Parties before making recommendations to the Secretary of State. The Secretary of State must either give effect to these recommendations or make appropriate modifications (Clause 3(6)).

9.  The scheme is intended as an administrative one. As such it is not subject to parliamentary approval but is to be published in any way which the Secretary of State considers appropriate (Clause 3(7)). In the light the nature of the scheme, the requirement for publication and the recommendations to be given by the Electoral Commission in relation to the scheme, the Department believes that it is not necessary or appropriate to provide for formal parliamentary scrutiny.

Clause 5- Supplementary provisions: Financial Assistance for Political Parities

10.  Subsection (6) of clause 5 amends an existing power, contained in section 1 of the Financial Assistance for Political Parties Act (Northern Ireland) 2000 (NI c.1) ("FAPPA 2000"). Section 1 provides for the Northern Ireland Assembly Commission to prepare a scheme for the making of payments to political parties. The scheme is essentially administrative and is not delegated legislation as such. FAFPA 2000 contains provisions as to the laying of the scheme before the Assembly (s 2), but by virtue of paragraph 7 of the Schedule to the Northern Ireland Act 2000 those arrangements do not apply when section 1 of that Act is in force, as it is at present. Clause 5(6) does not confer a new power, rather it simply amends the vires provided in section 1. It is, however, dealt with here for completeness.

11.  While section 1 of the Northern Ireland Act 2000 is in force, the Secretary of State exercises the functions of the Assembly Commission under section 1 FAPPA 2000. Clause 5(6) amends section 1 to enable the Secretary of State to make payments to political parties in order to assist them in engaging in political discussions about a return to devolved government. This temporary modification would enable the Secretary of State to provide financial assistance to the parties during the period of suspension.

12.  Clause 5(6) modifies the vires in section 1 which would not currently allow such payments to be made. The other provisions relating to the scheme are not affected.

13.  In the Department's view this temporary modification of the vires to make a scheme does not make it necessary to alter the approach of FAPPA 2000 to the nature of the scheme, or to its scrutiny.

Clause 6: Modification of enactments

Power on conferred on:  The Secretary of State

Power exercised by:    Order made by statutory instrument

Parliamentary procedure:  Draft affirmative procedure, with provision for urgency

  procedure

14.  Clause 6(1) confers power on the Secretary of State to make such modifications of enactments as appear to him to be necessary or expedient in consequence of, or in connection with, any provision made by or under the Bill. "Enactments" is defined widely by clause 6(4) to include a provision contained in an Act, a provision of, or an instrument made under, Northern Ireland legislation, and a provision of subordinate legislation. Clause 6(2) provides that an order made Clause 6(1) may modify the duties of the Chief Electoral Officer for Northern Ireland, where he is required to perform any duty or function by reference to a particular date. Clause 6(3) confers power to make supplementary, incidental or consequential provisions.

15.  Clause 6(5) provides that the Order should be subject to the draft affirmative procedure. Clause 6(6) provides that the Order is not to be subject to the draft affirmative procedure if, on the face of the Order, the Secretary of State declares that he considers it expedient for the order to be made without approval by resolution of each House of Parliament ("the urgency procedure"). An Order containing a declaration under clause 6(6) is subject to the urgency procedure. Clause 6(7) provides that under the urgency procedure the Order must be laid before Parliament after being made and ceases to have effect if it is not approved by a resolution of each House of Parliament within forty days. The day on which the Order is made marks the beginning of the forty day period (Clause 6(7)(b)). In calculating the forty day period, time in which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days is not to be taken into account (Clause 6(9)). (This is the same as the procedure applied by section 7 of the Northern Ireland Act 2000 in respect of a modification order under section 6 of that Act.)

16.  The power in clause 6(1) to make modifications to legislation, including primary legislation, is a broad one. It is appropriate for the Bill to provide for a high level of Parliamentary scrutiny in such a case and that is why the draft affirmative procedure has been applied. The urgency procedure is considered necessary as an alternative to allow for a swift execution of the modification power in the event that modification becomes necessary at very short notice, or at a time when Parliament is not sitting. For example, if an election was to be held in early autumn and modifications were considered necessary to provisions concerning the duties of the Chief Electoral Officer under the Representation of the People Act 1983 in relation to the annual canvass, an Order making the necessary modifications would need to be made during the Summer recess.

17.  In the Department's view the draft affirmative/urgency procedure provides an appropriate level of parliamentary scrutiny for an order of this kind.

9 May 2003


3   At present subsection (2) of section 31 is as substituted by paragraph (a) of section 1(2) of the Northern Ireland Assembly Elections Act 2003, which is repealed by clause 1(5) of this Bill. Back


 
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