Select Committee on Northern Ireland Affairs Minutes of Evidence

Annex B



  Under the Northern Ireland Act 1998, legislation relating to Northern Ireland is divided into three categories, similar to those set out in the Northern Ireland Constitution Act 1973, (new references have been added to take account of new policy areas which have been identified since 1973), which in turn broadly reflect the constitutional arrangements that had existed since partition in 1921 in accordance with the Government of Ireland Act 1920. The three categories are:

    (a)  Excepted matters—those matters on which the right to legislate would not be devolved to any Northern Ireland legislature. These matters include the Crown, Parliament, international relations, defence and other subjects which naturally belong to Parliament at Westminster and other matters of particular sensitivity in Northern Ireland such as the appointment of judges, electoral matters and measures against terrorism. Excepted matters have always been dealt with by Bill at Westminster.

    (b)  Reserved matters—those matters for which responsibility might one day be devolved to a local administration and on which a Northern Ireland legislature could only legislate with the Secretary of State's approval. These matters include the courts, public order, the criminal law and police. During Direct Rule these matters were usually handled by amending existing Northern Ireland statutes by Order in Council and existing UK statutes by Bill.

    (c)  All other matters are deemed to be transferred; ie, available for immediate transfer to a devolved administration and could be legislated upon by a Northern Ireland legislature. Transferred matters include virtually all the matters for which the six Northern Ireland Departments were formerly responsible (ie education, agriculture, health and social services, finance and personnel, the environment and economic development) and during Direct Rule they were nearly always dealt with by Order in Council under the 1974 Northern Ireland Act.


  2.  The Belfast Agreement of 10 April 1998 indicates that the Northern Ireland Assembly will have authority to pass primary legislation for Northern Ireland in devolved areas (ie those formerly within the responsibility of the six Northern Ireland Departments).

  3.  Subject to the Secretary of State for Northern Ireland's agreement, the Northern Ireland Assembly will also under the Belfast Agreement have the option of seeking to include Northern Ireland provisions in UK-wide legislation in Westminster Bills, especially on devolved issues where parity is normally maintained (eg social security and company law).

  4.  Legislation on all "excepted" matters will also continue to be made at Westminster by Bill.

  5.  For the foreseeable future, any "reserved" matter of special significance or which is likely to be contentious (for example, any legislation which might arise from the Patten report on Policing in Northern Ireland) will also continue to be made at Westminster by Bill.

  6.  Powers are retained under section 85 of the Northern Ireland Act 1998 for the Order in Council procedure to be continued to be used at Westminster for certain "reserved" matters (chiefly relating to core NIO and Northern Ireland Court Service functions) set out in paragraphs 9-17 of schedule 3 of the Northern Ireland Act.


  7.  The Secretary of State's consent is required by (section 8 of the Northern Ireland Act 1998) in relation to a Bill which contains a provision which deals with:

    —  a reserved matter; or

    —  an excepted matter, and is ancillary to other provisions dealing with reserved or transferred matters. (If it were not ancillary, it would be outside the legislative competence of the Assembly.)

  8.  In the majority of cases this consent will be given before introduction. If it is not given in advance, (for example, where amendment to the Bill introduces a provision dealing with a reserved matter) it will be required when the Bill has completed all its stages.

  9.  Where an Assembly Bill contains provisions on reserved matters that are not simply ancillary to transferred matters, there is also a system (section 15) of parliamentary control (a modified negative resolution procedure).

  10.  Assembly legislation covering transferred matters is required to be considered by the Secretary of State before he submits it to Her Majesty for Royal Assent. Section 14 of the Northern Ireland Act 1998 states that he will not submit an Assembly Bill for Royal Assent where it contains a provision which the Secretary of State considers would be incompatible with international obligations (not including European Convention obligations or European Community law obligations), the interests of defence or national security, or the protection of public safety or public order, or which would have an adverse effect on the operation of the single market in goods and services within the United Kingdom.

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