TWENTY-FIFTH REPORT |
14 JULY 1999
By the Select Committee appointed to report whether
the provisions of any bill inappropriately delegate legislative
power, or whether they subject the exercise of legislative power
to an inappropriate degree of parliamentary scrutiny; to report
on documents laid before Parliament under section 3(3) of the
Deregulation and Contracting Out Act 1994 and on draft orders
laid under section 1(4) of that Act; and to perform, in respect
of such documents and orders, the functions performed in respect
of other instruments by the Joint Committee on Statutory Instruments.
NORTHERN IRELAND BILL
1. The key provisions of the Northern Ireland
Act 1998 on which this Bill would operate are not at present in
force, and neither are the associated international agreements.
An Assembly was elected in Northern Ireland on 25 June 1998, and
first met on 1 July 1998. The Assembly operates, in advance of
devolution, in accordance with Standing Orders determined by the
Secretary of State under the Northern Ireland (Elections) Act
1998. Meanwhile, direct rule continues in Northern Ireland on
the foundation of the Northern Ireland Act 1974, under which executive
functions are carried out under the control of the Secretary of
State, and there are special powers of legislation for Northern
Ireland by Order in Council.
2. This bill makes provision for the suspension
of devolved government in Northern Ireland in the event of failure
to meet a commitment relating to decommissioning or devolution
or a failure to take a step covered by the "failsafe"
clause in paragraph 5 of the Joint Statement by the British and
Irish Governments (the text of this Statement is set out in Schedule
2 to the bill). The bill contains a number of delegated powers.
3. As the bill is being considered by Parliament
with particular speed, the Committee is issuing this report initially
in typescript. The matters covered in this report are, as always,
limited by the Committee's restricted terms of reference.
4. If it is necessary to suspend devolved government
for any of the reasons specified in subsection (1) of clause 1,
subsection (2) requires the Secretary of State to make a suspension
order. The consequences are set out in the subsection. Subsection
(5)(a) allows the order to make "such consequential, incidental
and supplementary modifications of enactments as appear to the
Secretary of State to be necessary or expedient." Subsection
(5)(b) attracts negative procedure.
5. The bill is making provision for the government
of Northern Ireland should there be a breakdown in the agreement
on which devolution rests. In such circumstances direct rule is
inevitable and the arrangements for it have to be made immediately.
While this comment applies to the bill generally, it applies with
particular force to the legal step which marks the transition.
The Committee accepts that the delegation in clause 1(2) is appropriate
and that negative procedure is also appropriate in spite of the
necessary width of subsection (5)(a) which makes this a Henry
VIII power and would in other contexts raise the question whether
affirmative procedure would be more appropriate.
6. The bill is constructed on the basis that
devolved government may have to be suspended but clause 2(1) allows
the Secretary of State to restore it by making an order appointing
a day for the end of the suspension period. Again it is necessary
to take Henry VIII powers (subsection (3)) but as there may well
be time for Parliament to debate the proposals, the clause provides
affirmative procedure while allowing an "emergency"
procedure under which the order can be made but expires unless
approved by both Houses within 40 days (subsections (4) and (5)).
The Committee is satisfied that this provides for appropriate
7. This clause is concerned with the implementation
bodies established under the Northern Ireland Act 1998. During
a suspension period the functions of such a body so far as they
relate to Northern Ireland will have to be transferred to a Northern
Ireland department. Subsection (1) requires the Secretary of State
to make an order transferring the functions and subsection (2)
requires her to transfer the functions back again after the suspension
period has come to an end. Subsection (3) allows an order to make
consequential, supplementary and transitional modifications of
enactments. This is a Henry VIII power but within very narrow
limits and the Committee accepts that negative procedure (provided
by subsection (3)(b)) is appropriate.
8. Paragraph 1 enables legislation for Northern
Ireland to be made by Order in Council during the first six months
of a suspension period as provision cannot be made by Act of the
Assembly. Legislation by Order in Council has been a feature of
direct rule and the characteristics of paragraph 1 are already
familiar. Sub-paragraphs (3) and (4) provide for affirmative control
subject to an emergency procedure. Subsection (7) allows the six
month period specified in sub-paragraph (1) to be extended by
order subject to affirmative procedure (sub-paragraph (8)). Both
powers in paragraph 1 are Henry VIII powers but delegation and
Parliamentary control are appropriate.
9. Paragraph 3 deals with subordinate instruments
which, but for the suspension order, would come before the Assembly.
Sub-paragraph (2) converts Assembly affirmative procedure into
Westminster negative procedure.
10. Paragraph 7(3) amends the Audit (Northern
Ireland) Order 1987 to convert the requirement for a resolution
of the Assembly into an order of the Secretary of State which
is subject to negative procedure.
11. Paragraph 8 requires accounts, reports and
other documents which have to be laid before the Assembly to be
laid instead before the House of Commons (sub-paragraph (2)) or
both Houses (sub-paragraph (3)). Sub-paragraph (3) is limited
to documents prescribed by order of the Secretary of State and
sub-paragraph (4) applies negative procedure to the order.
12. There is nothing in the bill which the Committee
wishes to draw to the attention of the House.
1 Explanatory Notes to the Bill, paragraph 7. Back