Northern Ireland (Executive Formation and Exercise of Functions) Bill

Explanatory Notes

Territorial extent and application

12 Clause 8 sets out the territorial extent of the bill, that is the jurisdictions in which the Bill forms part of the law. The extent of a Bill can be different from its application. Application is about where the Bill produces a practical effect. The Bill would extend to England and Wales, Scotland and Northern Ireland. In terms of application, Clauses 1 to 4 would apply to Northern Ireland only. Clauses 5 to 10 would apply to England and Wales, Scotland and Northern Ireland.

13 This Bill affects matters within the devolved (transferred) competence of the Northern Ireland Assembly. The Sewel Convention sets out that the UK Parliament will not normally legislate in an area of devolved competence without the agreement of the devolved legislatures. In the absence of the Executive and a sitting Assembly, it is not possible for the Assembly to provide a Legislative Consent Motion. The Government are satisfied that the circumstances of this Bill come within the exception allowed by the convention.

14 See the table in Annex A for a summary of the position regarding territorial extent and application in the United Kingdom. The table also summarises the position regarding legislative consent motions.

Fast-track legislation

15 The Government intends to ask Parliament to expedite the Parliamentary progress of this Bill. In their report Fast-track Legislation: Constitutional Implications and Safeguards , the House of Lords Constitution Committee recommended that the Government should provide more information as to why a piece of legislation should be fast-tracked. 1

Why is Fast-tracking necessary?

16 These provisions are required urgently to 1) provide clarity about the obligation the Secretary of State is under to propose a date for a fresh election by providing for a limited and prescribed period during which an Executive may be formed at any point without the requirement for further legislation, 2) clarify the powers of Northern Ireland Departments to exercise functions in the absence of Ministers, and 3) enable key appointments to be made, both in Northern Ireland and on a UK-wide basis and ensure that vital public offices (such as the Chair of the Disclosure and Barring Service) are able to be filled. Together these measures form a package of interventions which the Government judge to be the minimum required to allow the parties space to seek to form an Executive and to fulfill the Government’s commitment to take those decisions which are necessary to ensure the continued delivery of vital public services in Northern Ireland.

17 It would not have been appropriate for the UK Government to bring forward this Bill earlier as it was hoped that a restored Executive could have taken forward elements such as those related to public appointments.

What is the justification for Fast-tracking each element of the bill?

Extension of period for Executive formation

18 As the Secretary of State set out in her statement to Parliament on 6 September, in the absence of an Executive, she has kept her duty to set a date for a fresh election under review. She has not set a date and does not believe that holding an election during this time would be helpful or would increase the prospects of restoring the Executive. In order to ensure certainty and clarity on this issue, the Bill provides for a limited and prescribed period during which there will be no legal requirement to set a date for a further election and, importantly, during which an Executive may be formed at any point without the requirement for further legislation. She hopes that this will provide a further opportunity to re-establish political dialogue, with the aim of restoring the Executive as soon as possible. Fast-tracking this Bill would help to create that environment in which political dialogue can be re-established.

Exercise of departmental functions during the period for Executive formation

19 Following the judg ment in the recent Buick case (where the Court of Appeal ruled that civil servants did not have the legal power to approve a major waste disposal and energy generation facility and more generally cannot exercise functions in respect of cross-cutting, significant or controversial matters that would normally have to be referred to the Executive Committee for discussion and agreement) the Government need to give the NI Civil Service greater clarity for the continued delivery of public services. There are a wide range of issues that require decision-making by the NI Civil Service (including the exercise of some appointment functions). This Bill is being fast-tracked to provide that certainty - and guidance in respect of the parameters for that decision-making - as soon as reasonably possible.

Public appointments

20 Both the Northern Ireland Policing Board and the Northern Ireland Judicial Appointments Commission (NIJAC) are already at a diminished level, significantly increasing the workload of the remaining NIJAC members. The Policing Board needs to be fully operational to fulfil its general oversight functions as soon as possible, and particularly, given that the term of office of the Chief Constable expires in July 2019, in good time to ensure there is no vacancy in this important position given there is a lead-in period of six months from the Board’s decision on the method of appointment. As well as enabling the Board to be reconstituted, the Bill would enable it to appoint senior police officers; as noted above, there is a pressing need for appointments and an increasing reliance on temporary promotions that the Chief Constable has raised as an issue with the Northern Ireland Affairs Committee.

21 The Probation Board for Northern Ireland’s current members’ appointments cease at the end of November 2018 and no appointments can be made without having this legislation in place, potentially putting at risk the Board’s ability to continue to deliver its existing statutory functions and its capacity to provide strategic oversight for the probation service. The appointment of a new Chair for the Disclosure and Barring Service is also needed before the current Chair’s appointment expires at the end of November 2018; fast-tracking this Bill would allow that appointment to be made.

What efforts have been made to ensure the amount of time made available for parliamentary scrutiny has been maximised?

22 The Secretary of State for Northern Ireland’s Oral Statement of 6 September 2018 informed Parliament of the need for this legislation being brought forward, as did the 18 July Written Ministerial Statement on public appointments. The Government have engaged various MPs and Peers to offer detailed briefings on the planned legislation, and these have been discussed in detail with the Northern Ireland parties.

To what extent have interested parties and outside groups been given an opportunity to influence the policy proposal?

23 As mentioned above, the policy intent has been announced in Parliament. Substantial engagement been undertaken alongside and after those announcements. Ministers and officials have engaged with the Northern Ireland political parties on the various components of this Bill and the associated guidance and received oral representations. The Bill provides that prior to issuing guidance the Secretary of State must have regard to representations made by those parties. All five main political parties have received several briefings, and have met the Secretary of State on a number of occasions to discuss the proposals.

24 Briefings have also been offered to key Parliamentarians ahead of introduction.

25 The Northern Ireland Office has also consulted with the Northern Ireland Civil Service prior to drafting this Bill and the associated draft guidance.

Does the bill include a sunset clause (as well as any appropriate renewal procedure)? If not, why does the Government judge that their inclusion is not appropriate?

26 The extension of the period for forming an Executive and the provisions concerning decision-making during that period on 26 March 2019 (or when Ministerial offices are filled or the Assembly dissolved, if earlier). Given the timings attached to particular appointments to be made by UK Ministers in the absence of their Northern Ireland counterparts, the provisions concerning public appointments sunsets when Northern Ireland Ministers are in post (which could potentially, therefore, be for a longer period).

Are mechanisms for effective post-legislative scrutiny and review in place? If not, why does the Government judge that their inclusion is not appropriate?

27 The Government does not consider post-legislative scrutiny to be appropriate. The provisions of this Bill are time-bound (all sunsetted as described above) and a series of measures to manage the current period without Northern Ireland Ministers. Given that sunset provisions are included, without the capacity for the Bill’s provisions to apply again in future, post-legislative scrutiny is not appropriate.

Has an assessment been made as to whether existing legislation is sufficient to deal with any or all the issues in question?

28 Existing legislation does not suffice to deal with the issues in question. The period for formation of an Executive has passed and requires legislation to amend it. The provisions of this Bill relating to decision-making seek to provide clarity following a recent Court ruling. The appointment functions dealt with in Clauses 4, 5 and 6 cannot be exercised as existing primary legislation requires them to be exercised by - or following actions of - Northern Ireland Ministers.

Has the relevant parliamentary committee been given the opportunity to scrutinise the legislation?

29 Given time pressure on the Bill, there has been no opportunity for the Bill to be scrutinised by the Northern Ireland Affairs Committee, but the Committee received a briefing from officials on its content on Wednesday 10 October 2018. Other Committees’ staff have also been briefed including the Northern Ireland Affairs Committee, the House of Lords Constitution Committee and the Delegated Powers and Regulatory Reform Committee.


Prepared 19th October 2018