Northern Ireland (Executive Formation and Exercise of Functions) Bill (HC Bill 275)

A

BILL

TO

Facilitate the formation of an Executive in Northern Ireland by extending the
time for making Ministerial appointments following the election of the
Northern Ireland Assembly on 2 March 2017; and to make provision about the
exercise of governmental functions in, or in relation to, Northern Ireland in the
absence of Northern Ireland Ministers.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Executive formation

1 Extension of period for Executive formation

(1) For the purposes of filling the Ministerial offices on the first occasion following
the election of the Northern Ireland Assembly at the poll on 2 March 2017, the
5Northern Ireland Act 1998 has effect as if in section 16A(3) for the words before
paragraph (a) there were substituted “Within the period beginning with the
first meeting of the Assembly and ending with 26 March 2019”.

(2) Subsection (1) is to be treated as having had effect at all times on and after 2
March 2017.

(3) 10Section 32 of the Northern Ireland Act 1998 has effect as if, during the period
for forming an Executive, for subsection (3) there were substituted—

(3) The Secretary of State may propose a date for the poll for the election of
the next Northern Ireland Assembly that is earlier than the date
determined in accordance with section 31.”

(4) 15In the Northern Ireland (Ministerial Appointments and Regional Rates)
Act 2017, omit section 1.

(5) In this section—

  • “the Ministerial offices” means the offices of the First Minister, deputy
    First Minister and the Northern Ireland Ministers;

  • Northern Ireland (Executive Formation and Exercise of Functions) BillPage 2

  • “the period for forming an Executive” means the period beginning when
    this Act is passed and ending—

    (a)

    when all of the Ministerial offices are next filled,

    (b)

    when the period mentioned in section 16A(3) of the Northern
    5Ireland Act 1998, as modified by subsection (1), ends, or

    (c)

    when the Assembly elected on 2 March 2017 is dissolved,

    whichever happens first.

2 Limited power to further extend period for Executive formation

(1) The Secretary of State may by regulations amend section 1(1) so as to replace
10“26 March 2019” with any later date falling within the period of five months
beginning with 26 March 2019.

(2) The power under subsection (1)

(a) may only be used on or before 26 March 2019, and

(b) may only be used once.

(3) 15Regulations under subsection (1) are to be made by statutory instrument.

(4) A statutory instrument containing regulations under subsection (1) may not be
made unless—

(a) a draft of the instrument has been laid before and approved by a
resolution of each House of Parliament, or

(b) 20the regulations declare that the Secretary of State considers it to be
expedient for the regulations to be made without the approval
mentioned in paragraph (a).

(5) Where regulations contain a declaration under subsection (4)(b)

(a) the instrument containing the regulations must be laid before
25Parliament after being made, and

(b) if the replacement date substituted by the regulations is after the end of
the period of 28-days beginning with the day on which the instrument
is made and the instrument is not approved by a resolution of each
House of Parliament within that 28-day period, the regulations cease to
30have effect.

(6) If the regulations cease to have effect in accordance with subsection (5)(b) on or
before 26 March 2019, the period mentioned in section 1(1) is to be treated for
all purposes as ending with that date.

(7) 35If the regulations cease to have effect in accordance with subsection (5)(b) after
26 March 2019, the period mentioned in section 1(1) is to be treated for all
purposes as ending when the regulations cease to have effect.

(8) In calculating the period of 28 days mentioned in subsection (5)(b), no account
40is to be taken of any time during which Parliament is dissolved or prorogued
or during which both Houses are adjourned for more than four days.

Exercise of departmental functions during period for Executive formation

3 Exercise of departmental functions during period for Executive formation

(1) The absence of Northern Ireland Ministers does not prevent a senior officer of
45a Northern Ireland department from exercising a function of the department

Northern Ireland (Executive Formation and Exercise of Functions) BillPage 3

during the period for forming an Executive if the officer is satisfied that it is in
the public interest to exercise the function during that period.

(2) The Secretary of State must publish guidance about the exercise of functions in
reliance on subsection (1), including guidance as to the principles to be taken
5into account in deciding whether or not to exercise a function.

(3) Senior officers of Northern Ireland departments must have regard to that
guidance.

(4) The absence of Northern Ireland Ministers is not to be treated as having
prevented any senior officer of a Northern Ireland department from exercising
10functions of the department during the period beginning with 2 March 2017
and ending when this Act is passed.

(5) The fact that a matter connected with the exercise of a function by a Northern
Ireland department has not been discussed and agreed by the Executive
Committee of the Northern Ireland Assembly is not to be treated as having
15prevented the exercise of that function as mentioned in subsection (1) or (4).

(6) Subsections (4) and (5) do not apply in relation to the exercise of a function
before this Act is passed if—

(a) proceedings begun, but not finally decided, before this Act is passed
involve a challenge to the validity of that exercise of the function, and

(b) 20the application of those subsections would affect the outcome of the
proceedings,

but nothing in this subsection prevents the re-exercise of the function in the
same way in reliance on subsection (1).

(7) Subsections (1) to (6) have effect despite anything in the Northern Ireland Act
251998, the Departments (Northern Ireland) Order 1999 (S.I. 1999/283 (N.I. 1)S.I. 1999/283 (N.I. 1)) or
any other enactment or rule of law that would prevent a senior officer of a
Northern Ireland department from exercising departmental functions in the
absence of Northern Ireland Ministers.

(8) No inference is to be drawn from subsections (1) to (7) as to whether or not a
30senior officer of a Northern Ireland department would otherwise have been
prevented from exercising departmental functions.

(9) Before publishing guidance under subsection (2) the Secretary of State must
have regard to any representations made by members of the Northern Ireland
Assembly.

(10) 35In this section—

  • “enactment” includes any provision of, or of any instrument made under,
    Northern Ireland legislation (within the meaning given by section 98 of
    the Northern Ireland Act 1998);

  • “Northern Ireland Minister” includes the First Minister and the deputy
    40First Minister;

  • “the period for forming an Executive” has the meaning given by section
    1(5);

  • “senior officer of a Northern Ireland department” has the same meaning
    as in the Departments (Northern Ireland) Order 1999 (see Article 2(3) of
    45that Order).

Northern Ireland (Executive Formation and Exercise of Functions) BillPage 4

Exercise of appointment functions during period while no Executive

4 NI Ministerial appointment functions: specified offices

(1) During the period while there is no Executive, an appointment function of a
Northern Ireland Minister in relation to a specified office may be exercised by
5the relevant Minister of the Crown.

(2) The table defines terms for the purposes of this section.

“specified office” “relevant Minister of
the Crown”
Member of the Northern Ireland Judicial
Appointments Commission
Lord Chancellor
10
Member of the Northern Ireland Policing
Board
Secretary of State
Member of the Police Service of Northern
Ireland above the rank of chief
superintendent
Secretary of State

15
Member, chair or deputy chair of the
Probation Board for Northern Ireland
Secretary of State
Police Ombudsman for Northern Ireland Secretary of State

(3) The Secretary of State may by regulations made by statutory instrument add
20entries to the table.

(4) A statutory instrument containing regulations under subsection (3) is subject
to annulment in pursuance of a resolution of either House of Parliament,
unless section 7(4) applies to the instrument.

(5) Before exercising an appointment function in reliance on subsection (1) the
25relevant Minister of the Crown must consult a relevant Northern Ireland
department.

(6) Any enactment or document is to have effect, so far as may be necessary for or
in consequence of the exercise of any functions by the relevant Minister of the
Crown in reliance on this section, as if references to a Northern Ireland Minister
30included, or were, references to the relevant Minister of the Crown.

5 Minister of the Crown appointment functions

Any requirement for a Minister of the Crown to consult, or obtain the approval
of, a Northern Ireland Minister or the Executive Committee of the Northern
Ireland Assembly before exercising an appointment function has effect, during
35the period while there is no Executive, as a requirement to consult a relevant
Northern Ireland department.

Northern Ireland (Executive Formation and Exercise of Functions) BillPage 5

6 Joint UK appointment functions etc

(1) During the period while there is no Executive, the Secretary of State may
exercise any appointment function of a Northern Ireland Minister that is
exercisable jointly with one or more other persons who include the Secretary of
5State.

(2) Before exercising an appointment function in reliance on subsection (1) the
Secretary of State must consult a relevant Northern Ireland department.

(3) Any enactment or document is to have effect, so far as may be necessary for or
in consequence of the exercise of any functions by the Secretary of State in
10reliance on this section, as if references to a Northern Ireland Minister
included, or were, references to the Secretary of State.

7 Interpretation of sections 4 to 6

(1) In sections 4 to 6—

  • “appointment function” means—

    (a)

    15the function of appointing a person to an office or
    recommending a person for appointment;

    (b)

    the function of requesting nominations for an appointment;

    (c)

    the function of determining terms of appointment;

    (d)

    the function of determining remuneration, pensions or other
    20payments in respect of appointments or loss of office or
    suspension from office;

    (e)

    the function of suspending or removing a person from office or
    receiving notice of a person’s resignation from office or calling
    on a person to resign or retire;

    (f)

    25the function of approving or being consulted about the exercise
    of any of the functions listed in paragraphs (a) to (e);

    (g)

    the function of requiring or requesting another person to
    exercise any of the functions listed in paragraphs (a) to (e);

    (h)

    a function ancillary to any of the functions listed above;

  • 30“enactment” includes any provision of, or of any instrument made under,
    Northern Ireland legislation (within the meaning given by section 98 of
    the Northern Ireland Act 1998);

  • “Minister of the Crown” has the same meaning as in the Ministers of the
    Crown Act 1975;

  • 35“Northern Ireland Minister” includes the First Minister and the deputy
    First Minister;

  • “the period while there is no Executive” means the period—

    (a)

    beginning when this Act is passed, and

    (b)

    ending on the next occasion when the offices of all of the
    40Northern Ireland Ministers are filled.

(2) A reference in those sections to the function of a person includes a function that
is exercisable by that person jointly with one or more other persons.

(3) The Secretary of State may by regulations made by statutory instrument
amend the definition of “appointment function”.

(4) 45A statutory instrument containing regulations under subsection (3) (whether
alone or together with regulations under section 4) may not be made unless a

Northern Ireland (Executive Formation and Exercise of Functions) BillPage 6

draft of the instrument has been laid before and approved by a resolution of
each House of Parliament.

General

8 Extent

5This Act extends to England and Wales, Scotland and Northern Ireland.

9 Commencement

This Act comes into force on the day on which it is passed.

10 Short title

This Act may be cited as the Northern Ireland (Executive Formation and
10Exercise of Functions) Act 2018.