The Northern Ireland (Executive Formation and Exercise of Functions) Act 2018
2. The Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 ("2018 Act") was passed on 1 November 2018 to facilitate an extended legal period for formation of an Executive in Northern Ireland. The Act:
● Extended the period during which Northern Ireland Ministers could be appointed following the election of the Northern Ireland Assembly on 2 March 2017 ("the period for Executive formation") so as to expire on 26 March 2019;1 and
● Clarified that Northern Ireland departments are not prevented from exercising their functions in the absence of NI Ministers during the period for Executive formation, so long as they are satisfied that it is in the public interest to do so and they have regard to guidance published by the Secretary of State.
Collapse of the Northern Ireland Executive
3. 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.
Talks to restore the Northern Ireland Executive
4. In February 2018, Northern Ireland’s main political parties embarked on a new phase of talks aimed at restoring the Northern Ireland Executive and Assembly. However, after 2 months of talks, the DUP and Sinn Féin (who, as the two largest parties, are entitled to the First and deputy First Minister posts respectively) were unable to reach an agreement.
5. On 26 April 2019, the UK Government and the Irish Government announced a fresh round of political talks. The talks between the UK Government, the Irish Government and the five Northern Ireland political parties, in accordance with the three-stranded approach set out in the Belfast/Good Friday Agreement, commenced on 7 May.2 Following extensive discussion and negotiation, as of 3 July 2019, the talks have not yet been able to reach conclusion. In light of the significant uncertainty ahead across the UK the Government believes that an extended window is needed.
Extension of Executive formation period
6. Section 16A of the 1998 Act provides for a 14 day period after the first meeting of the Assembly following an 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.
7. The 2018 Act extended the time under section 16A of the 1998 Act for Ministers to be appointed until 26 March 2019, conferring a power on the Secretary of State to extend that period by regulations on one occasion only for up to 5 months. On 20 March 2019 the Secretary of State exercised that power and the period for Executive formation was extended so as to expire on 25 August 2019.3
8. This Bill extends the period again so as to expire on 21 October 2019 and enables the Secretary of State to further extend that period until 13 January 2020 (by regulations subject to the made affirmative procedure). The made affirmative procedure will enable the Secretary of State to make the regulations and extend time without the prior approval of Parliament but requires the subsequent approval of Parliament, ensuring Parliamentary scrutiny of how and why she has exercised the power. Extending the period for forming an Executive means that if agreement is reached to form an Executive after 25 August 2019, Ministers can be appointed right away without the need for further legislation. This also has the effect that section 3 of the 2018 Act continues to apply and Northern Ireland departments may continue to exercise their functions in accordance with that section.4
1 Subsequently extended until 25 August 2019.
2 The 2019 talks aimed at restoring the Northern Ireland Executive have consisted of five working groups each discussing key issues central to making progress. They cover: a programme for government; transparency, accountability and the operation of the Executive; reform of the Petition of Concern; rights, language and identity issues; and improving the sustainability, stability and operation of the Belfast/Good Friday Agreement institutions as a whole.
3 Northern Ireland (Extension of Period for Executive Formation) Regulations 2019 (SI 2019/616).
4 Which provides for the exercise of NI departmental functions in the absence of Ministers.