NORTHERN IRELAND (LOCATION OF VICTIMS' REMAINS) BILL
Memorandum by the Northern Ireland Office
INTRODUCTION AND SCOPE
This memorandum identifies each provision of the
Bill which gives powers for delegated legislation and 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 and parliamentary procedure applying to any exercise of the
THE PURPOSE OF THE BILL
A number of people, referred to colloquially as "the
Disappeared", have gone missing in Northern Ireland over
the last 25 years. It is believed that they were abducted and
killed by proscribed organisations but to date their remains have
not been located. This Bill is designed to facilitate the provision
of information about the whereabouts of the remains of these victims
to an international Commission, established by an Agreement made
on 27 April 1999 between the United Kingdom and Irish Governments.
References in the Bill to "the Commission" are to the
Independent Commission for the Location of Victims' Remains established
by that Agreement (clause 1(2)).
The Irish Government has prepared a Bill which makes
comparable provision to this Bill and which is currently being
considered by the Dail.
Clause 2: The Commission
SUBSECTIONS (1) & (2)
Subsection (1) provides
power for the Secretary of State to make various provision about
the Commission by order.
An order under subsection (1) may confer on the Commission
the legal capacities of a body corporate (paragraph (a)). It may
also confer on the Commission, in such cases, to such 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)). Any of the privileges
and immunities set out in Parts II, III and V of that Schedule
may be conferred on members and servants of the Commission and
members of their families who form part of their households (paragraph
(c)), again in such cases, to such an extent and with such modifications
as the order may specify. Finally, an order under subsection (1)
may make provision about the waiver of immunities and privileges
Subsection (2) provides
that an order under subsection (1) may make different provision
for different cases (including different provision for different
persons) and shall be made by statutory instrument subject to
the negative resolution procedure.
It is considered that detailed matters of the type
described in subsection (1)(a) to (d) are more appropriately dealt
with by means of delegated legislation than on the face of the
Bill itself. 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 draft 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 this feature arguably justifies the affirmative
resolution procedure in that case. Here, however the Bill itself
identifies which body is to benefit from the conferral of immunities
and privileges, the only issue being just what privileges etc
should apply. In these circumstances, it is considered that the
negative resolution procedure is sufficient.
The power in clause 2(1) is modelled on the provision
contained in section 7(2) of the Northern Ireland Arms Decommissioning
Act 1997 (c.7). The negative resolution procedure applies to orders
made under that provision (section 7(3)(b)).
SUBSECTIONS (5) & (6)
Subsection (5) and (6)
provide respectively that clause 2 shall come into force, or cease
to have effect, on such day as the Secretary of State, after consulting
the Minster for Justice, Equality and Law Reform of the Government
of Ireland, may by order made by statutory instrument appoint.
An order made under subsection (6) may include such transitional
provision as appears to the Secretary of State to be expedient.
The commencement power in subsection (5) has
been included to allow section 2 to be brought into force to coincide
with the commencement of the parallel provision relating to the
Commission in the Irish legislation. As is customary in respect
of commencement orders, no Parliamentary procedure is provided
for an order under subsection (5).
Once the Commission's task is completed, it will
no longer be needed and subsection (6) has therefore been
included to allow the section to be lapsed, again following consultation
with the relevant Irish Minister. Having regard to the limited
purpose of such an order no Parliamentary procedure is provided.
Again, subsections (6) and (7) are modelled on provisions
contained in the Northern Ireland Arms Decommissioning Act 1997
(section 7(5) and (6) of the 1997 Act).
13 May 1999