Annex B
NORTHERN IRELAND LEGISLATION POST-DEVOLUTION
CATEGORIES OF
LEGISLATION
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.
HANDLING OF
LEGISLATION POST-DEVOLUTION
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.
THE ROLE
OF THE
SECRETARY OF
STATE IN
CONSENTING TO
NORTHERN IRELAND
LEGISLATION
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:
— 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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