Northern Ireland (Executive Formation and Exercise of Functions) Bill

Policy background

2 There has been no functioning Northern Ireland Executive since 9 January 2017, when the then deputy First Minister of Northern Ireland resigned, which also resulted in the First Minister ceasing to hold office. All other Northern Ireland Ministers ceased to hold office when an extraordinary Assembly election was held on 2 March 2017. The period for the appointment of Ministers to form an Executive after that election was extended to 29 June 2017 by the Northern Ireland (Ministerial Appointments and Regional Rates) Act 2017 ("MARRA"), but no Ministers were appointed.

3 Since then, Parliament has intervened when necessary to ensure the continuity of public services in Northern Ireland. Examples include providing authority for expenditure for Northern Ireland departments and other bodies through the Budget Acts for 2017-18 and 2018-19, enabling the continued operation of the Renewable Heat Incentive scheme and collection of regional rates, and empowering the Secretary of State to make changes to the pay and allowances for Members of the Northern Ireland Assembly. 1

4 The principal aim and function of this Bill is to facilitate a period where the Executive can be formed and talks can take place. This Bill is part of a package of measures aimed at restoring the devolved power-sharing Executive and Assembly and ensuring the continued delivery of public services in Northern Ireland. Those measures provided for in the Bill are:

a. Executive formation: provides a limited and prescribed period where Executive Ministers can be appointed and a Government can be formed at any time. During this period the Secretary of State has no legal duty to propose a date for an Assembly election. The Secretary of State will, however, have a discretionary power to call an election if she judges that it is in the public interest to do so.

b. Departmental decision-making: provisions to give greater clarity and certainty to enable Northern Ireland departments to continue to take decisions in Northern Ireland in the public interest to ensure the continued delivery of public services, and;

c. Public appointments: enable key public appointments to be made in the absence of Northern Ireland Ministers.

Extension of executive formation period

5 Section 16A of the Northern Ireland Act 1998 ("1998 Act") provides for a 14 day period following an Assembly election in which Northern Ireland Ministers – including the First Minister and deputy First Minister – must be appointed. If they are not, then the Secretary of State is required to propose a date for another election under section 32(3). That period initially expired on 27 March 2017 but was extended by the MARRA so as to expire on 29 June 2017. The Bill extends the time under section 16A of the 1998 Act for Ministers to be appointed until 26 March 2019, with the possibility to further extend that period for up to 5 months with the agreement of Parliament.

Exercise of departmental functions during the period for Executive formation

6 The Court held in Buick 2 that powers exercisable by departments in the absence of Ministers are subject to limitations. In particular – and for the purposes of that appeal – that departments may not exercise functions in respect of matters that would normally be required to be referred to the Executive Committee of the Assembly because they are cross-cutting, significant or controversial. It also observed that decisions which, although conferred on departments, would normally be referred to Ministers for approval lie beyond the competence of civil servants. This ruling is significantly restricting the ability of senior officers of Northern Ireland Departments to take decisions that are necessary to ensure the continued delivery of public services. The Bill will clarify that a senior officer of a Northern Ireland department is not prevented from exercising functions of the department during the period for forming an Executive (i.e. the period established under clause 1) where it is in the public interest to do so. "Senior officer" is given the same meaning as in the Departments (Northern Ireland) Order 1999, namely: a person who is employed in that department and is (a) a member of the Northern Ireland senior civil service; or (b) a member of the Northern Ireland civil service designated by the department as a senior officer for the purposes of that Order.

7 The Bill requires the Secretary of State to issue guidance about the exercise of departments’ functions, and departments are to have regard to that guidance. It is intended that the guidance will provide a framework to support Accounting Officers and Senior Officers when considering whether a decision should or should not be taken to exercise a departmental function in the absence of Ministers, and will provide a set of principles and factors to be taken into account when making this decision. This guidance will not identify or direct specific decisions but will set out principles to be taken into account when deciding whether or not it is in the public interest to exercise a function in the absence of Ministers.

8 The Bill also makes provision in respect of the exercise of functions since 2 March 2017, when Ministers ceased to be in place, to provide clarity around functions that have already been exercised.

Northern Ireland Minister appointment functions

9 Where appointment functions are conferred on Northern Ireland Ministers, they cannot be exercised while there are no Northern Ireland Ministers in post. The Bill would address the most urgent cases, where the making of an appointment is necessary to maintain good governance and public confidence in the institutions in Northern Ireland, particularly focussing on the sensitive area of policing and justice. Those offices are:

a. The Northern Ireland Judicial Appointments Commission (NIJAC), which was established in 2005 under the Justice (Northern Ireland) Act 2002 to select and appoint, or recommend for appointment, in respect of all listed judicial offices up to and including High Court Judge. 3 Chaired by the Lord Chief Justice of Northern Ireland (LCJ), its full membership is five judicial members nominated by the LCJ, ‘legal professional’ members nominated by the Law Society of Northern Ireland and the General Council of the Bar of Northern Ireland, and five ‘lay’ members appointed by the First Minister and deputy First Minister acting jointly. The nominated members are also appointed by the First Minister and deputy First Minister so cannot be appointed without those ministers in place.

b. The Northern Ireland Policing Board, which was established in 2001 under the Police (Northern Ireland) Act 2000 following the report of the Independent Commission on Policing for Northern Ireland (the Patten report), provides oversight for the Police Service of Northern Ireland (PSNI) and Chief Constable, including the appointment of the Chief Constable, Deputy Chief Constable and Assistant Chief Constables. The Board should consist of ten political members (nominated by Northern Ireland parties on the basis of their representation in the Assembly) and nine independent members, appointed by the Minister of Justice. In line with legislation the political members ceased to hold office after the March 2017 Assembly election; since 30 June 2018, the Board has also been without three of its nine independent members.

c. Appointments of senior officers in the PSNI are made by the Northern Ireland Policing Board under the Police (Northern Ireland) Act 2000, as noted above, but require ministerial approval from the Minister of Justice. These are appointments of officers above the rank of Chief Superintendent: the Chief Constable, Deputy Chief Constable, and Assistant Chief Constables (ACCs). The absence of any capacity for the Board to make these appointments has meant that two of the five ACCs are currently on temporary promotions and one of the substantive ACCs is currently covering the role of Deputy Chief Constable following the latter’s appointment to An Garda Síochána. The Chief Constable raised his concerns about reliance on temporary appointments in evidence to the House of Commons Northern Ireland Affairs Committee. 4

d. The Probation Board for Northern Ireland, appointed under the Probation Board (Northern Ireland) Order 1982, has the following mandatory functions: secure the maintenance of an adequate and efficient probation service; make arrangements for persons to perform work under Community Service orders; provide such probation officers and other staff as the Department of Justice considers necessary to perform social welfare duties in Prisons and Young Offenders Centres; and undertake other such duties as may be prescribed. It consists of a Chair, a Deputy Chair and not less than 10 or more than 18 other members. Including the Chair and Deputy Chair there are currently 12 Board Members and one vacancy on the Board. The Chair and Board Members are appointed for a maximum of three years by the Minister of Justice. The tenure of all the current members expires on 30 November 2018.

e. The Police Ombudsman for Northern Ireland is responsible for the independent and impartial investigation of complaints against the police, and for the investigation of a range of other matters referred by the Department of Justice, Policing Board and the Chief Constable, or in respect of matters considered by the Ombudsman to be in the public interest. The Ombudsman investigates complaints against the PSNI, the Belfast Harbour Police, the Belfast International Airport Police, National Crime Agency Officers in Northern Ireland, Ministry of Defence Police in Northern Ireland and certain complaints about Immigration Officers and Designated Customs Officials when operating in Northern Ireland. The appointment is for seven years (or up to retirement at 70 years old) and is made by Her Majesty on the recommendation of the First Minister and deputy First Minister acting jointly, under the Police (Northern Ireland) Act 1998.

Minister of the Crown appointment functions and joint appointments

10 The absence of Northern Ireland Ministers also affects some appointments made by UK Ministers. Where current legislation states that, in making an appointment, Ministers must consult or obtain the agreement of Northern Ireland Ministers, this cannot be achieved in the absence of an Executive. Where appointments are made by UK Ministers jointly with Northern Ireland Ministers (and, in some cases, also with Scottish and Welsh Ministers), these appointments also cannot be made at present.

Legal background

11 The relevant legal background is set out in the policy background to these notes.