Commentary on provisions of Bill
Clause 1: Extension of period for Executive formation
30 This clause extends the statutory time limit for the appointment of Northern Ireland Ministers for a limited and prescribed period, during which time an Executive may be formed at any point without the requirement for further legislation. This will have the effect of setting aside the current legal requirement to propose a date for a further election. Clause 1(1) amends s. 16A(3) of the Northern Ireland Act 1998 which says:
"(3) Within a period of 14 days beginning with the first meeting of the Assembly-
(a)the offices of First Minister and deputy First Minister shall be filled by applying subsections (4) to (7); and
(b)the Ministerial offices to be held by Northern Ireland Ministers shall be filled by applying section 18(2) to (6).".
Clause 1 has the effect of substituting 26 March 2019 date for the "period of 14 days".
31 Clause 1(2) provides that change is treated as having been the case since 2 March 2017, being the date of the last election to the Assembly. Clause 1(4) removes the previous legal provision in the MARRA to extend the period to 29 June 2017.
32 Clause 1(3) allows the Secretary of State to propose a date for an election earlier than the date at which these provisions expire.
Clause 2: Limited power to further extend the period for Executive formation
33 This clause enables the Secretary of State to make regulations to extend the time for Executive formation by one further period of up to five months. Clause 2(2) provides that this power may only be exercised on or before 26 March 2019 and may only be used on one occasion.
34 The Secretary of State would be required either to lay the statutory instrument containing regulations before Parliament for approval, or to make the regulations before they are approved by Parliament if she considers it to be expedient for the regulations to be made without that approval. If the regulations are made without the prior approval of Parliament, then they must be approved within the period of 28 days beginning with the date on which they are made. If they are not, they cease to have effect. However, that is subject to one exception where the replacement date is earlier than the expiry of the period of 28 days. In that case, whilst the regulations must be laid, they are not subject to any Parliamentary procedure. (Clause 2(5)).
35 Subsections (6) and (7) clarify when the period for Executive formation would end in the event that Parliament does not approve regulations extending this period within 28 days. Clause 2(8) provides that if Parliament is dissolved, prorogued or adjourned for more than four days then those days are not included in the calculation of the 28 days.
Clause 3: Exercise of departmental functions during period for Executive formation
36 Clause 3 makes provision for the exercise of Northern Ireland departmental powers during the period for forming an Executive. In particular, it clarifies that the absence of Ministers does not prevent a senior officer of a Northern Ireland department from exercising a function of the department if she or he is satisfied that it is in the public interest to do so during the period for forming an Executive (Clause 3(1)).
37 The Secretary of State is required to publish guidance about the exercise of departmental functions, including guidance as to the principles to be taken into account in deciding whether or not to exercise a function, and senior officers of departments are required to have regard to that guidance (subsections (2) and (3)). Before publishing this guidance, including any subsequent revisions, the Secretary of State is required to have regard to any representations made to her by Members of the Northern Ireland Assembly (subsection (9)).
38 Subsections (4),(5), (7) and (8) clarify that the absence of Ministers or the Executive Committee of the Assembly is not to be treated as having prevented departments from exercising their functions in the period since 2 March 2017 . Subsection (6) preserves the rights of existing litigants to proceed with their pending claims. Such claims will not be affected by the retrospective provision. But departments will not be prevented from retaking such decisions.
Clause 4: Northern Ireland Ministerial appointment functions: specified offices
39 This clause provides a limited power for the relevant UK Minister to exercise appointment functions, in relation to the offices specified in the clause, during the current period without an Executive. Appointment functions in relation to those specified offices are currently conferred on Northern Ireland Ministers. It would transfer only those powers that are currently conferred on Northern Ireland Ministers and would make no further changes to the appointment functions affected. The appointments would be made in accordance with the existing legislation, for a period and subject to the terms and conditions decided by the Ministers (or the full statutory term in the case of the Police Ombudsman). Clause 4(5) requires the UK Minister to consult a Northern Ireland department prior to exercising these powers; this reflects the continued responsibility of the sponsor department for all matters to do with the bodies in question other than the appointment functions covered by this Bill.
40 The table in Clause 4(2) sets out the offices over which appointment functions (as defined in clause 7(1)) normally exercised by Northern Ireland Ministers would be exercised by the "relevant Minister of the Crown", following consultation with the relevant Northern Ireland department. Unless stated otherwise below, the following appointment functions would be exercised by the Secretary of State:
a. Members of the Northern Ireland Judicial Appointments Commission (NIJAC) would be appointed by the Lord Chancellor. As set out above, most members are nominated by the Lord Chief Justice or professional bodies, and the Bill would allow the Lord Chancellor to make the formal appointment of those members in place of the First Minister and deputy First Minister. The Lord Chancellor would also be able to appoint or reappoint lay members as necessary and to exercise other appointment functions conferred on the First Minister and deputy First Minister. The Lord Chancellor was responsible for appointment functions relating to NIJAC prior to the devolution of policing and justice in 2010.
b. Members of the Northern Ireland Policing Board. Similarly to NIJAC, many of these appointments would be nominees, in this case ten nominees of the political parties; to make these nominated appointments, the Secretary of State’s role would be to invite nominations from the parties and receive the required correspondence from new members. The Secretary of State would also be able to appoint independent members; when doing so, there is a requirement to ensure that the Board as a whole is representative of the community and to consult the relevant Northern Ireland department, 1 district councils and others before making the appointment. The Secretary of State would also be able to exercise the other appointment functions of the Justice Minister.
c. Members of the PSNI above the rank of Chief Superintendent - including the Chief Constable and Deputy Chief Constable - are appointed by the Northern Ireland Policing Board, under section 35 of the Police (Northern Ireland) Act 2000, and would continue to be under this Bill. However, as the appointments require the approval of the Minister of Justice, the Bill would allow the Secretary of State to exercise this appointment function and others already conferred on the Minister. This will enable the Policing Board to make these appointments as it sees fit, including those where, like the post of Deputy Chief Constable, offices are currently filled by temporary appointees.
d. Members, Chair and Deputy Chair of the Probation Board for Northern Ireland. The Secretary of State would take on the Northern Ireland Minister’s appointment functions, including the appointment of members, Chair and Deputy-Chair. Members may self-nominate for the post of Deputy Chair: the successful applicant is formally appointed by the Minister.
e. The Police Ombudsman for Northern Ireland. This is a non-renewable seven-year (or until retirement) appointment made by Her Majesty on the recommendation of the First Minister and deputy First Minister acting jointly; under this clause, the Secretary of State would take on the First Minister and deputy First Ministers’ appointment functions including making the recommendation.
41 In combination with the definition in clause 7, the power to exercise appointment functions in relation to these offices would cease when there is next a Northern Ireland Executive. This means that these powers would return to Northern Ireland Ministers as soon as they are in post, and any pending appointments or other appointment functions would again fall to them to exercise.
42 The Secretary of State would be empowered by clause 4(3) to amend the list of offices in clause 4(2) through a statutory instrument, transferring to the relevant UK Minister appointment functions in relation to other bodies and offices in respect of which legislation currently confers those functions on Northern Ireland Ministers. This is included to ensure that vacancies that need to be filled as a matter of urgency can be filled without the need for further primary legislation. Similarly, it would allow other appointment functions to be exercised if needed urgently - for example the removal from an office not covered in clause 4 of someone who is no longer eligible to hold that office (for example following bankruptcy) but who can only be removed by a Minister.
43 Under Clause 4(4), an instrument under Clause 4(3) is subject to the negative resolution procedure unless it also includes provision made under Clause 7(3) amending the definition of "appointment functions" in Clause 7(1) (see below regarding the regulation-making power). As with the Bill itself and the offices set out in Clause 4, the Government is clear that any further additions to the list by regulations would only be made where they were urgent and necessary for continued good governance and following discussions with the main Northern Ireland political parties.
Clause 5: Minister of the Crown appointment functions
44 This clause addresses those appointments functions already conferred on UK Ministers that cannot be exercised in the absence of Northern Ireland Ministers. Where legislation requires that UK Ministers consult or obtain the agreement of Northern Ireland Ministers or the Executive Committee before exercising an appointment function, this clause replaces that with a requirement that the Northern Ireland department is consulted.
45 This clause does not allow UK Ministers to make additional appointments other than in the circumstances provided for by this Bill: the ability to exercise appointment functions where the functions are conferred solely on Northern Ireland Ministers is within clause 4; joint appointments are covered by Clause 6.
Clause 6: Joint UK appointment functions etc.
46 This clause addresses appointment functions exercised jointly by UK Ministers and Northern Ireland Ministers, including those made alongside Scottish and Welsh Ministers. In these cases, it would enable those functions to be exercised in the absence of the Northern Ireland Minister. Instead of acting jointly with the Northern Ireland Minister, the Secretary of State would be required, before exercising the appointment functions, to consult the relevant Northern Ireland department. The functions of the Scottish and Welsh Ministers are not affected, meaning that an appointment that would otherwise be made jointly by Ministers from the UK Government and the three devolved administrations would instead be made by UK, Scottish and Welsh Ministers, following consultation (by the Secretary of State) with the relevant Northern Ireland department. This does not affect appointments made by Northern Ireland Ministers alone to joint bodies; these would be within the scope of Clause 4.
Clause 7: Interpretation of sections 4 to 6
47 The key terms used in clauses 4 to 6 of the Bill are defined in clause 7(1). Of note are the following definitions:
a. "appointment function" covers the range of functions affected by the Bill including making appointments, recommending a person for appointment, requesting nominations and approving the resulting nominations (as in the cases of NIJAC and the Policing Board), determining terms of office and remuneration (where that is not the responsibility of the department), and functions around resignations and removals. Clause 7(3) allows the Secretary of State to amend this definition using a statutory instrument subject to the affirmative procedure (see clause 7(4)).
b. "Northern Ireland Minister" includes both references to the generic post, specific posts (such as the Justice Minister) or First Minister and deputy First Minister; the term includes references to "head of department" (used in legislation before 1998 2 ).
c. "the period while there is no Executive" is the period during which the provisions set out at clauses 4 to 6 of the Bill apply and it is the period beginning when the Act is passed and ending when a new Northern Ireland Executive is formed, with all Northern Ireland Minister posts filled.
1 Under the Police (Northern Ireland) Act 2000, the Justice Minister is required to consult the First Minister and deputy First Minister; under clause 5 of this Bill, the requirement would be to consult the relevant Northern Ireland department. The Minister is also required to consult district councils in Northern Ireland, and such other bodies as the Minister considers appropriate.
2 Under paragraph 11 of Schedule 12 to the Northern Ireland Act 1998, references to head of a Northern Ireland department "shall be construed as a reference to a Northern Ireland Minister".