Select Committee on Delegated Powers and Regulatory Reform Twenty-Fourth Report


ANNEX 3

NORTHERN IRELAND (MONITORING COMMISSION ETC.) BILL

MEMORANDUM BY THE NORTHERN IRELAND OFFICE

1.  This Memorandum is concerned with the Northern Ireland (Monitoring Commission) 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 the Bill

2.  The Bill makes provision in relation to the International Monitoring Commission ("IMC") which will be established in international law by means of a Treaty to be concluded between the British and Irish Governments. The establishment of the Commission is a key part of a package of proposals published by the British and Irish Governments on 1 May aimed at rebuilding the trust and confidence in Northern Ireland necessary to permit the restoration of devolved government on a stable and inclusive basis, and the full implementation of the remainder of the Belfast (Good Friday) Agreement of 10 April 1998. The Commission is to be established to monitor and report on the carrying out of various commitments relating to the Belfast Agreement and its continuing implementation.

3.  The Commission will monitor activity by paramilitary groups, security normalisation and will report on claims relating to commitment to observing the terms of the pledge of office set out in Schedule 4 to the Northern Ireland Act 1998 ("the 1998 Act").

4.  Accordingly, the Bill has two main purposes. Firstly, the Bill provides the power to confer legal capacity, immunities and privileges on the IMC. Secondly, the Bill amends the 1998 Act to provide for a range of measures which may be imposed by the Northern Ireland Assembly ("the Assembly") and the Secretary of State.

Clause 1: The Monitoring Commission

Power conferred on:    The Secretary of State

Power exercised by:    Order made by statutory instrument

Parliamentary procedure:  Negative procedure

5.  Clause 1 defines "the Monitoring Commission" as a body established by Treaty with the functions set out in paragraphs (a)-(c).

6.  Clause 1(2) confers power on the Secretary of State to make various provisions about the IMC by Order. In particular, an Order made under clause 1(2) may:

·  confer on the IMC the legal capacities of a body corporate (paragraph (a));

·  confer on the IMC, in such cases, to such an extent and with such modifications as the order may specify, any of the privileges and immunities set out in Part 1 of Schedule 1 to the International Organisations Act 1968 (paragraph (b));

·  confer any of the privileges and immunities set out in Parts 2, 3 and 5 of that Schedule on members and servants of the Commission and members of their families who form part of their households again in such cases, to such an extent and with such modifications as the order may specify (paragraph (c));

·  make provision about the waiver of immunities and privileges (paragraph (d)).

7.  An Order made under clause (1)(2) may make different provisions in different cases (including different provisions for different persons) and is subject to the negative resolution procedure (clause 1(4)(b)).

8.  It is considered that detailed matters of the type described in clause 1(2)(a) to (d) are more appropriately dealt with by means of delegated legislation than on the face of the Bill itself. Clearly, this is an important power, but the essential decisions will be taken by Parliament in passing the primary legislation. In the case of the power to confer immunities and privileges the scope is determined by the International Organisations Act 1968.

9.  In contrast to the power under section 1(2) of the 1968 Act to apply the privileges and immunities by Order in Council, which is subject to the affirmative resolution procedure, the negative resolution procedure has been chosen here. An Order in Council under the 1968 Act identifies the organisation which is to benefit and, and this feature arguably justifies the affirmative resolution procedure in this case. Here, however, the Bill itself identifies the body which is to benefit from the conferral of immunities and privileges, the only issue being just what privileges should apply.

10.  The power in clause 1(2) is modelled on provisions contained in section 7(2) of the Northern Ireland Decommissioning Act 1997 (c.7) and section 2(1) of the Northern Ireland (Location of Victims' Remains) Act 1999 (c.7). The negative resolution procedure applies to orders made under these provisions (section 7(3)(b) and section 2(2) respectively). It is expected that the order to be made under clause 1(2) will make provision similar to that contained in the orders made under those provisions (The Northern Ireland Decommissioning Act 1997 (Immunities and Privileges) Order 1997 (S.I. 1997/2231) and The Northern Ireland (Location of Victims Remains) Act 1999 (Immunities and Privileges) Order 1999 (S.I. 1999/1437)).

11.  The Department's view is that in these circumstances the negative resolution procedure affords an appropriate level of Parliamentary control.

The Secretary of State's Powers

Clause 5 inserting new sections 30A(2), 30A(3), 30A(5) and 30A(6) in the 1998 Act

Clause 6 inserting new sections 47B(2), 47B(3), 47B(5) and 47B(6) in the 1998 Act

Clause 7 inserting new section 51B(2), 51B(3) and 51B(4) in the 1998 Act

Powers conferred on:    The Secretary of State

Powers exercised by:    Direction

Parliamentary procedure:  Draft affirmative procedure, with special provision for cases

        of urgency.

12.  The Bill amends the 1998 Act to provide for an extended range of responses or measures to be imposed on Northern Ireland Ministers, Junior Ministers or parties in the Assembly. The extended range of measures may be imposed by the Assembly itself, subject to the conditions in section 30(5)of the 1998 Act, or by the Secretary of State under the provisions discussed here.

13.  The range of measures which may be imposed by the Assembly and the Secretary of State are identical in scope and effect. The Secretary of State's powers are, however, cast in such a way that they become available only in circumstances where a number of prior conditions are met, including consideration by the Northern Ireland Assembly. The Secretary of State will only be able to impose these new measures if the following conditions are satisfied:

·  The Commission makes a report under the terms of the Treaty which contains a recommendation about the steps that the Assembly might consider taking; and

·  The taking of those steps requires the Assembly to pass a resolution imposing the measure which is the subject of the Secretary of State's direction; and

·  The first motion for a resolution to take those recommended steps does not attract cross- community support (new sections 30A(1), 47B(1) and 51B(1)).

14.  In the event that these conditions are satisfied, are three different measures available to the Secretary of State:

(a) Exclusion from Ministerial Office

New sections 30A(2) and 30A(3) (inserted by clause 5)

The Secretary of State is given power to exclude a Minister or junior Minister from holding Ministerial office for a specified period of between three and twelve months (new section 30A(2)). The Secretary of State may also by direction extend a period of exclusion which he has imposed under new section 30A(2) or the Assembly has imposed under section 30(1) for a specified period of between three and twelve months (new section 30A(3)).

New sections 30A(5) and 30A(6) (inserted by clause 5)

The Secretary of State may by direction exclude members of a political party from holding Ministerial office for a specified period of between six months and twelve months (new section 30A(5)). The Secretary of State may also by direction extend a period of exclusion which he has imposed under new section 30A(5) or the Assembly has imposed under section 30(2) for a specified period of between six and twelve months (new section 30A(6)).

(b) Reduction of Remuneration

New sections 47B(2) and 47B(3) (inserted by clause 6)

The Secretary of State may by direction provide that the whole of a specified part of the salary payable to a Minister or junior Minister shall not be payable for a specified period (new section 47B(2)). The Secretary of State may also by direction extend a period of reduced remuneration which he has imposed under new section 47B(2) or the Assembly has imposed under new section 47A(1)(new section 47B(3)).

New sections 47B(5) and 47B(6) (inserted by clause 6)

The Secretary of State may by direction provide that the whole of a specified part of the salary payable to a members of the Assembly who are members of a particular political party shall not be payable for a specified period (new section 47B(5)). The Secretary of State may also by direction extend a period of reduced remuneration which he has imposed under new section 47B(5) or the Assembly has imposed under new section 47A(2)(new section 47B(6))

The maximum period for which remuneration is reduced must not exceed 12 months (new section 47C(1)). The Secretary of State may extend the period for which remuneration is reduced under new sections 47B(3) or (6), provided that the total period for which remuneration is reduced at any time does not exceed the 12 month maximum (new sections 47C(2)).

(c) Reduction of financial assistance

New section 51B(2) (inserted by clause 7)

The Secretary of State may by direction provide that the whole or specified part of any financial assistance payable to a particular party under the Financial Assistance to Political Parties Act (Northern Ireland) 2000 shall not be payable (new section 51B(2)). The Secretary of State may also by direction extend a period of reduced financial assistance the Assembly has imposed under new section 51A(1) or which he has imposed under new section 51B(2)(new sections 51B(3) and (4) respectively).

The maximum period for which financial assistance is reduced must not exceed 12 months (new section 51C(1)). The Secretary of State may extend the period for which for which financial assistance is reduced under new sections 51B(3) or (4), provided that the total period for which financial assistance is reduced at any time does not exceed the 12 month maximum (new section 51C(2)).

The Test for the Exercise of the Secretary of State's Power of Direction

15.  The Secretary of State may exercise his powers in relation to a Minister or junior Minister under new sections 30A(2), 30A(3), 47B(2) or 47B(3) only if he is satisfied that the Minister or junior Minister concerned is not committed to non-violence and exclusively peaceful and democratic means, or has failed to observe any other terms of the pledge of office (new sections 30A(4) and 47B(4)).

16.  Equally, the Secretary of State may only exercise his powers in relation to a particular political party under new sections 30A(5), 30A(6), 47B(5), 47B(6) or 51B(2), (3) or (4) if he is satisfied that the political party concerned is not committed to non-violence and exclusively peaceful and democratic means or is not committed to such of its members as are or might become Ministers or junior Ministers observing the terms of the pledge of office (new sections 30A(7), 47B(7) and 51B(5)). The test is therefore the same as that applied by the Assembly in this regard.

Procedure - Clause 9 Inserting New Section 95A

17.  A direction under new sections 30A, 47B and 51B must be in writing (new section 95A(1)).

18.  The Bill does not, however, make provision for directions to be made by way of statutory instrument under new sections 30A, 47B and 51B. The Secretary of State may, by direction, vary a resolution of the Assembly (and similarly the Assembly has power to vary a direction by way of a resolution). The Department therefore considers that it would be undesirable for directions to be made by statutory instrument, when resolutions are not so made (and clearly cannot be).

19.  New section 95A(3) provides that directions under new sections 30A, 47B and 51B (with the exceptions of 30A(8)(a), 47B(8)(a) and 51B(6)(a)) are subject to the draft affirmative procedure.

20.  New section 95A(4) provides that the direction is not subject to the draft affirmative procedure if, on the face of the direction, 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 new section 95A(4) is subject to the urgency procedure. New section 95A(5) provides that under the urgency procedure a copy of the document containing the direction shall be laid before Parliament after the direction is given. New section 95A(6) provides that under the urgency procedure if the direction is not approved by each House of Parliament before the end of 40 days beginning with the date of the direction, is shall cease to have effect if it has not already ceased to have effect under new section 95A(7). New section 95A(7) provides that if on any day during the period of 40 days either House of Parliament rejects the direction in proceedings on a motion to approve the direction, the direction shall cease to have effect at the end of that day. In calculating the forty day period, time in which Parliament is dissolved, prorogued or during which both Houses are adjourned for more than four days is not to be taken into account (new section 95A(8)).

21.  The power to make directions is a significant one with important political consequences. Any report which the Secretary of State has regard to in deciding to make a direction would have been laid before each House of Parliament (see clause 3 of the Bill). Given that directions have a direct impact on individuals and parties 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 necessary as an alternative to allow for the application of the measure in the event that Parliament is not sitting or in order to respond quickly to political developments in Northern Ireland.

22.  In the event that a direction is not approved by both Houses of Parliament under the urgency procedure, the general intention is that the position which existed immediately before the imposition of the measure should be restored. The provisions in new Schedule 12A (inserted by clause 9) are intended to achieve this result. The individuals affected by the measure will not, therefore, experience any detriment following Parliament's decision not to approve the imposition of the measure. Following the failure of a direction under new section 30A(5), any Minister or junior Minister who has been excluded from office will be re-instated if he remains eligible to hold that office (new Schedule 12A(1)-(4)). Following the failure of a direction under new section 30A(5) or 30A(2) the First Minister and Deputy First Minister who have been removed from office will be re-instated if both remain eligible (new Schedule 12A(5)-(8)). Any money which has been withheld pursuant to a direction under new section 47B or 51B that has ceased to have effect will be treated as payable and will become due when the direction ceases to have effect (new Schedule 12A(9)). New schedule 12A(9)(2) confers an entitlement to the withheld sums and new schedule 12A(9)(3) requires a payment of the withheld sums to be made. (No provision is made for the case where a direction excluding an individual Minister fails to gain approval. In that case it will be for the party concerned to decide if the Minister should be returned to their former office).

23.  The Department's view is that the draft affirmative procedure/urgency procedure provides for an appropriate level of parliamentary scrutiny for the directions described above.

New section 30A(8)(a) inserted by clause 5

New section 47B(8)(a) inserted by clause 6

New section 51B(6)(a) inserted by clause 7

Power conferred on:    The Secretary of State

Power exercised by:    Direction

Parliamentary procedure:  Laid before Parliament after being made.

24.  New section 30A(8)(a) makes provision for the Secretary of State to bring to an end a period of exclusion which he has imposed under new section 30A(2) or 30A(5) by way of direction. New section 47B(8)(a) makes provision for the Secretary of State to bring a period of reduced remuneration which he has imposed under new section 47B(2) or (5) to an end by way of direction. New section 51B(6)(a) makes provision for the Secretary of State to bring a period of reduced financial assistance imposed by new section 51B(2) to an end by way of direction.

25.  Directions made under new sections 30A(8)(a), 47B(8)(a) and 51B(6)(a) must be in writing (new section 95A(1)) and laid before Parliament after the direction is given (new section 95A(2)). The power conferred upon the Secretary of State by these clauses is a very specific one. He is empowered to bring the period in question to an end. Such directions do not have an adverse impact on the person who is the subject of the direction but instead return them to the position that they were in prior to the direction being made. These provisions enable the Secretary of State to respond by lifting the measure and restoring the status quo that existed before the measure was imposed. In such a situation Parliamentary procedure would further delay the eventual restoration of the position which existed before the imposition of the direction.

Clause 10(2)

Power conferred on     The Secretary of State

Power exercised by:    Order made by statutory instrument

Parliamentary procedure:  No Parliamentary procedure

26.  Clause 10(2) confers power on the Secretary of State to bring different sections of the Bill into force at different times. This has been included to allow the provisions to be brought into force to coincide with the Treaty coming into force and the commencement of parallel provisions relating to the Commission in Irish legislation.

27.  As is customary in respect of commencement Orders, no parliamentary procedure is provided for an order under clause 10(2).

Clause 10(3)

Power conferred on:    The Secretary of State

Power exercised by:    Order made by statutory instrument

Parliamentary procedure:  No Parliamentary procedure

28.  The Treaty which will establish the Commission in international law will continue in force until it is terminated by mutual agreement between the British and Irish Governments.

29.  Once the Commission has finished its tasks, Clause 10(3) provides for the removal of the provisions which establish the Commission in domestic law and of the Secretary of State's powers inserted in the 1998 Act which depend on the existence of the Commission.

30.  Clause 10(3) is modelled on section 7(6) of the Northern Ireland Arms Decommissioning Act 1997 (c.7) and section 2(6) of the Northern Ireland (Location of Victims' Remains) Act 1999 (c.7).

31.  Having regard to the limited purpose of such an Order no Parliamentary procedure is provided.

8 September 2003


 
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