Clause 14: Part 4 of the 2000 Act: the final disapplication period

60.     This clause extends the disapplication of Part 4 of the 2000 Act in relation to Northern Ireland until 31 October 2007, but otherwise replicates the provisions of the Disapplication Order. The order is overtaken by the clause.

61.     The clause also repeals the provisions of the 2000 Act that allowed disapplication of the Part 4 controls in Northern Ireland. Hence the period ending on 31 October 2007 will be the last period of disapplication and is known as the "final disapplication period".

Clause 15: Permissible donors: extension of categories

62.     When the final disapplication period ends, Northern Ireland parties and Northern Ireland regulated donees will no longer be exempt from the prohibition on accepting overseas donations generally. They will, however, still be able to accept donations from Irish citizens and other Irish bodies who can currently donate to Irish parties, in recognition of the special place Ireland occupies in the political life of Northern Ireland. Clause 15 inserts new sections 71A to 71C into the 2000 Act in order to achieve this.

63.     New section 71A specifies the "Northern Ireland recipients" who will be able to receive these donations (Northern Ireland parties and Northern Ireland regulated donees). New section 71B provides for the two additional categories of permissible donors in respect of Northern Ireland recipients: citizens of the Ireland and bodies (companies, trade unions, clubs etc) that are permitted under Irish law to donate to political parties in Ireland. These donors will have to meet prescribed conditions to be eligible to donate.

64.     The power to prescribe conditions in relation to Irish donors will have a dual purpose: to allow the donations controls to keep pace with any changes to Irish law, without the need for further primary legislation; and to ensure that criteria can be set that allow the Electoral Commission to check that donations from Irish donors are permissible (see Schedule 1 regarding the Commission's duty to verify donation reports).

65.     New section 71C will prevent Northern Ireland parties from making donations to parties or regulated donees in Great Britain. This will maintain the existing position, and will mean that the clause does not affect donations controls in Great Britain.

Clause 16: Supplementary provisions

66.     Clause 16 makes supplementary provision in relation to clause 15, including provision to prevent Northern Ireland parties from making donations to candidates standing for election in Great Britain. This reflects the current position.

Clause 17: Modifications during prescribed period

67.     This clause provides that the modifications to the 2000 Act set out in Schedule 1 to the Bill apply to Northern Ireland parties during the "prescribed period". The prescribed period is initially from 1 November 2007 until 31 October 2010, but the clause gives the Secretary of State a power to extend it by order by up to two years at a time.

68.     After the prescribed period has expired, the 2000 Act provisions will apply to Northern Ireland without the modifications. The effect of the modifications is explained below.

Clause 18: Power to make provision in connection with permissible donors

69.     This clause gives the Secretary of State the power to make an order modifying legislation connected with permissible donors or donations for political purposes. The power may only be used after consultation with the Electoral Commission, and any order made under the power is subject to the affirmative resolution in both Houses of Parliament.

Schedule 1: Modifications of the 2000 Act

70.     Schedule 1 contains provision setting out the basis on which the Electoral Commission will operate in relation to donation reports submitted by Northern Ireland recipients during the prescribed period.

71.     Paragraph 1 of the Schedule inserts new sections 71D and 71E in Chapter 6 of Part 4 of the 2000 Act (Chapter 6 of Part 4 is inserted by clause 15). Section 71D places a duty on the Commission to verify information contained in donation reports submitted by Northern Ireland recipients. The new section provides that the steps that the Commission must take in this regard will be prescribed in an order made by the Secretary of State under the power contained in new section 71A(4) inserted by clause 15.

72.     Section 71E(1) places a duty of confidentiality on the Electoral Commission in relation to the information contained in reports received from Northern Ireland recipients. A member or employee of the Commission may disclose the information received only in certain exceptional cases. These are:

• for the purpose of verifying information contained in donation reports (the bodies to whom such disclosure can be made must be prescribed by new section 71A(4));

• for the purposes of any civil or criminal proceedings;

• if the Commission believes, on reasonable grounds, that a donation accepted by a party should have been dealt with under section 56(2) of the 2000 Act, which provides for the return on impermissible donations.

73.     Section 71E provides that disclosure of the information contained in donation reports (other than in these cases) constitutes an offence. Paragraph 2 of Schedule 1 provides for the offence to be punishable on summary conviction in England and Wales by a maximum of 51 weeks' imprisonment, and in Northern Ireland and Scotland by a maximum of 6 months' imprisonment.

74.     An order made under the power contained in clause 18(1)(b) can make further provision in relation to the prescribed period. Matters that the Government intends the orders to be able to provide for include:

• a requirement for the Electoral Commission to check a specified proportion of the declared donations on each donation report;

• the documentation that the Commission must require from recipients in order to verify that accepted donations have been made by permissible donors;

• the procedure that will be followed by the Commission in requesting that information, including the time limit to be set for the recipient of the donation to comply;

• the steps that the Commission must take in relation to publication should the recipient fail to comply.

Schedule 4: Minor and consequential amendments

Part 1: Registration of Electors

75.     Schedule 4 makes minor and consequential amendments to the Electoral Law Act (Northern Ireland) 1962 (c.14) (N.I.), the 1983 Act, the Elected Authorities (Northern Ireland) Act 1989 (c.3), and the EAB in relation to the registration of electors, including registration-related appeals.

76.     Paragraph 5 of Part 1 of Schedule 4 replaces section 58 of the 1983 Act, which deals with Northern Ireland appeals against determinations by the CEO. The current version of section 58 simply applies the equivalent provisions for England and Wales to Northern Ireland, with one or two modifications. But, as a result of the amendments made by the Bill, the modifications would need to be more complicated. The replacement section 58 therefore sets out the position for Northern Ireland in full.

Part 2: The Chief Electoral Officer

77.     Part 2 of Schedule 4 makes minor amendments to the Electoral Law Act (Northern Ireland) 1962 (c.14) relating to the changes made by clauses 8 and 9 to the terms of appointment of the CEO.

PART 5: DEVOLUTION OF POLICING AND JUSTICE FUNCTIONS ETC

Clause 19: Department with policing and justice functions

78.     This clause inserts a new section 21A into the 1998 Act along with an accompanying new Schedule 4A (which is set out in Schedule 2 to the Bill). It applies where an Act of the Assembly establishes a new Department responsible for devolved policing and justice functions. (Subsections (6) and (7) define these functions). Where such a Department is established, an Act of the Assembly may provide for the Department to be headed by two Northern Ireland Ministers acting jointly. Alternatively, the Act may provide for the Department to be headed by one Minister supported by a junior Minister, and for those persons to rotate at intervals.

79.     This clause is additional to existing provision in the 1998 Act which provides for separate departments to be established, and headed up by a single Northern Ireland Minister. The 1998 Act would already allow for a new department for policing and criminal justice to be established under the control of a single Minister.

80.     The overall purpose is to ensure that policing and justice functions can be devolved to any possible departmental structure agreed by the Northern Ireland parties. The range of possible departmental structures was discussed in the Joint Declaration of 2003.

Schedule 4A: Department with policing and justice functions

81.     This new Schedule to the 1998 Act sets out the procedures that will apply where one of the departmental structures provided for by new section 21A is adopted. Part 1 of the Schedule provides for the case in which two Ministers in charge act jointly; Part 2 for the alternative rotational model. The Schedule requires, in both cases, that the First Minister and Deputy First Minister nominate two members of the Assembly to head up the department. The nomination must be approved by a resolution of the Assembly passed with cross-community support, in accordance with paragraph 4(4) or 8(4) of the Schedule. It is possible in either case for the First Minister or Deputy First Minister to be nominated.

82.     Both Parts 1 and 2 of the Schedule make provision for what happens if one of the Ministers ceases to hold office, requiring the nomination process to begin again. They also deal with how the nomination and appointment of Ministers under either scheme will affect the nomination and appointment of Ministers to other Northern Ireland Departments under section 18 of the 1998 Act.

83.     Part 3 of new Schedule 4A enables further modifications to be made by Order in Council, under the affirmative resolution procedure, in consequence of one of the new departmental structures being adopted. For example, in the event of one of the structures being adopted, it would be necessary to make modifications to Schedule 12A to the 1998 Act.

Clause 20: Amendment of section 44 of the 1998 Act

84.     This clause amends section 44 of the 1998 Act, which deals with the Assembly's power to call witnesses and require the production of documents. The amendment prevents the Assembly from calling (current or former) Ministers of the Crown or civil servants to give evidence or to produce documents in relation to:

• the discharge of functions devolved by an Order in Council under section 4 of the 1998 Act during the period before they were devolved;

• the discharge of statutory functions transferred from a Minister of the Crown to a Northern Ireland Department or Minister during the period before they were transferred. (This would cover, for example, functions transferred under the new section 86A of the 1998 Act to be inserted by clause 21.)

85.      Section 44 already makes similar provision in relation to the discharge of any functions during the period before devolution on the "appointed day" (i.e. 2 December 1999) or during a period of suspension. The change is designed to be consistent with the existing principle that the Assembly should have competence only in relation to transferred matters.

Clause 21: Provision for transfer of functions relating to extradition etc

86.     This clause inserts a new section 86A (provision for transfer of functions relating to extradition etc.) into the 1998 Act. Its purpose is to enable amendments to be made by Order in Council to legislation relevant to extradition. The relevant legislation is the Crime (International Co-operation) Act 2003 (c.32) and the Extradition Act 2003 (c.41). The power is available only for the purpose of transferring to Northern Ireland departments or Ministers functions under those Acts that are exercisable by Ministers of the Crown in relation to Northern Ireland.

Clause 22: Provision for entrenching enactments

87.     This clause inserts a new section 86B (provision for entrenching enactments) into the 1998 Act. This enables an Order in Council to amend section 7 of the 1998 Act, so as to "entrench" additional enactments, or to provide that entrenchments should cease to have effect. An order under this clause would require affirmative resolution approval. An enactment entrenched under this power could not be amended by the Assembly, but could nevertheless be a transferred matter. The power enables Acts and individual provisions of Acts, in particular, to be entrenched.

88.     During suspension, the power could be used to entrench amendments made to enactments relating to matters which are already transferred. For example, it could be used to entrench an amendment to create a policing precept to give the Assembly the power to provide an enhanced level of expenditure on policing by raising money for policing from the Northern Ireland regional rate.

PART 6: MISCELLANEOUS

Clause 23: Arms decommissioning: extension of amnesty period

89.     This clause amends the Northern Ireland Arms Decommissioning Act 1997 (c.7) to the effect that the latest permitted end date of an amnesty period during which paramilitary arms may be decommissioned is extended from 27 February 2007 to 27 February 2010. The only change made by this clause is an amendment of "2007" in the 1997 Act to "2010".

Clause 24: Loans to Consolidated Fund of Northern Ireland: increase of limits

90.     This clause amends the Northern Ireland (Loans) Act 1975 (c.83) to the effect that the limits on loans specified in that Act are increased. It is to come into force on Royal Assent. It amends the 1975 Act to increase the maximum loans limit to £3000 million from £2000 million. It further provides the Secretary of State with a power, by order and with the consent of the Treasury, to increase the loans limit by a maximum of £500 million at any time: under the amendments there will be no limit to the number of times such an increase may be made, although the consent of the Treasury will be needed on each occasion this order-making power is exercised.

Clause 25: Single wholesale electricity market

91.     This clause enables Her Majesty, by Order in Council, to give legal effect to any agreement or arrangement between the British and Irish Governments on the creation of a single wholesale electricity market in Northern Ireland and Ireland. It is to come into force on Royal Assent. A copy of any such agreement or arrangement would be presented to Parliament by the Secretary of State. In order to give full effect to any such agreement or arrangement once it becomes agreed between the two Governments, subsection (2) of the clause provides that an Order in Council may, in particular, provide for the amendment or repeal of legislation as necessary, grant powers on bodies or persons including the power to make subordinate legislation, and create offences. A draft Order in Council to be made under this provision would be subject to the affirmative resolution procedure.

Clause 26: Financial assistance for energy purposes

92.     This clause enables financial assistance for specified energy purposes to be provided. The clause substitutes a new Article 61 of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6)). Funding may be provided for the purposes described in paragraph (2) of the Article, if the Department is of the opinion that the form and amount of the assistance to be given is reasonable in all the circumstances. References in the Article to the Department are to the Department of Enterprise, Trade and Investment.

93.     The specified purposes for which funding may be given include: securing a diverse and viable long-term energy supply; promoting efficiency and economy in the generation and supply of energy; promoting the development of renewable energy sources or technologies for such energy production and related matters; promoting research and development; limiting or reducing energy-related greenhouse gas emissions; and other purposes which may be prescribed by regulations.

94.     Paragraph (4) of the Article provides that funding may be given in such form and subject to such conditions as the Department considers appropriate. Paragraph (5) sets out examples of the form in which funding may be provided (such as by way of grants, loans or indemnities or by way of investment). Paragraph (6) gives examples of the conditions to which the giving of assistance may be made subject. These include conditions as to repayment and conditions requiring payments to be made to the Department. For example, the recipient of assistance may be required to pay to the Department a proportion of the income it receives from the use by it of the assistance; such payments need not be capped at the level of assistance given.

Clause 27: Extension to Northern Ireland of provisions of SOCAP

95.     This clause extends to Northern Ireland certain provisions of the Serious Organised Crime and Police Act 2005 (c.15) which apply in Great Britain - namely, sections 60 to 67, 69 and 70. The purpose is to provide powers of compulsion of witnesses and document production in investigations undertaken in Northern Ireland by police and revenue and customs officers. Schedule 3 to the Bill sets out amendments of SOCAP made in connection with the extension of these provisions to Northern Ireland.

Schedule 3: Extension to Northern Ireland of provisions of SOCAP 2005

96.     Paragraph 2 of Schedule 3 provides that the Director of Public Prosecutions for Northern Ireland is an "Investigating Authority" within the meaning of section 60 of SOCAP, as is already, for example, the Director of Public Prosecutions for England and Wales. Paragraph 3 sets out the offences in Northern Ireland law to which the powers will apply. These correspond to the offences within Great Britain to which the British powers apply. For example, the powers will apply to section 17 of the Theft Act (Northern Ireland) 1969 (c.16) (N.I.) (which deals with false accounting) as SOCAP currently applies to section 17 of the Theft Act 1968 (c.60).

97.     Paragraph 4 provides that where these provisions apply to Northern Ireland, they take effect as if paragraph (b) of section 62(2) of SOCAP were omitted. This omission ensures that a member of staff of the Serious Organised Crime Agency is not one of the types of person who may be authorised by an Investigating Authority to issue disclosure notices in Northern Ireland or who may search premises in Northern Ireland under a search warrant issued under section 66 of SOCAP. Paragraphs (a) and (c) of section 62(2) provide that a police officer or a revenue and customs officer may be authorised to issue disclosure notices or search premises in this way.

98.     Paragraph 7 of Schedule 3 makes provision in Northern Ireland for the power of an Investigating Authority to apply for a warrant to enter and search premises and seize documents. This will be by making a complaint on oath to a lay magistrate who will decide whether a warrant should be granted.

Clause 28: Responsibilities in relation to the health and safety etc. of police

99.     This clause provides a person who holds the office of Chief Constable of the Police Service of Northern Ireland with "corporation sole" status, and is to come into force on Royal Assent. The PSNI Chief Constable is currently the only Chief Officer of police in the UK who has yet to receive corporation sole status. Like section 158 of SOCAP in relation to Great Britian, this clause amends relevant health and safety legislation in relation to Northern Ireland so that any prosecution will ordinarily be brought against the office of Chief Constable rather than against the individual incumbent. An effect of the provision is that the office of Chief Constable, rather than the individual who temporarily holds it, would be legally responsible for relevant breaches of the Health and Safety at Work (Northern Ireland) Order 1978 (S.I. 1978/1039 (N.I. 9)).

100.     However, the clause also creates exceptions for cases where it can be shown that the Chief Constable bore some degree of personal responsibility for the breach - for example, where he consented to the commission of any offence or the commission was attributable to his personal neglect. In these circumstances, the individual Chief Constable could be guilty of the offence in the usual way and would be liable to be proceeded against.

101.     Subsections (2) and (3) of the clause make the Chief Constable of the PSNI into a corporation sole for the purposes of Articles 72A and 169A of the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919 (N.I. 16)). Those Articles concern rights not to suffer detriments and not to be unfairly dismissed in connection with health and safety issues. Subsections (4) to (6) make provision for Northern Ireland corresponding to section 158(5) to (7) of SOCAP. For example, the effect of the amendments is backdated to 1 July 1998 for the purpose of any legal proceedings begun on or after commencement of this clause.

Clause 29: Duty to fill judicial vacancies

102.      Section 12 of the Judicature (Northern Ireland) Act 1978 (c.23) ("the 1978 Act") provides for the appointment of the Lord Chief Justice of Northern Ireland, Lords Justices of Appeal and High Court judges by Her Majesty the Queen. Subsection (1) of clause 29 amends section 12 of the 1978 Act so that appointments to the office of Lord Chief Justice or Lord Justice of Appeal are to be made on the recommendation of the Prime Minister and appointments to the office of High Court judge are to be made on the recommendation of the Lord Chancellor. This subsection also places a duty on the Prime Minister to make a recommendation to fill any vacancy in the office of Lord Chief Justice or Lord Justice of Appeal (except that, while the Lord Chief Justice agrees, the Prime Minister may leave a vacancy in the office of Lord Justice of Appeal unfilled). Subsection (3) of clause 29 places a corresponding duty on the Lord Chancellor in relation to the office of High Court judge.

103.     On devolution of justice to the Northern Ireland Assembly, section 12 of the 1978 Act is to be replaced by section 4 of the Justice (Northern Ireland) Act 2002 (c. 26) (as amended by the Justice (Northern Ireland) Act 2004 (c.4)) to set out the post-devolution arrangements for senior judicial appointments. Subsection (2) of clause 29 amends section 12 of the 1978 as substituted by section 4 of the 2002 Act (as amended) to place a duty on the Prime Minister to fill any vacancy in the office of Lord Chief Justice or Lord Justice of Appeal (except that, while the Lord Chief Justice agrees, the Prime Minister may leave a vacancy in the office of Lord Justice of Appeal unfilled).

104.     Section 5 of the 2002 Act provides for judicial offices listed in Schedule 1 to that Act (High Court judge and below) to be appointed or recommended for appointment by the First Minister and deputy First Minister, acting jointly following selection by the Judicial Appointments Commission for Northern Ireland on devolution of justice. Section 5 of the 2002 Act was amended by paragraph 3 of Schedule 1 to the 2004 Act to allow the establishment of the Commission prior to devolution and consequently transferred functions of the First Minister and the deputy First Minister in relation to the Commission to the Lord Chancellor. The Commission was established in June 2005.

105.     Subsection (3) of clause 29 amends section 5 of the 2002 Act (as amended). It places a duty on the Lord Chancellor to fill any vacancy in a listed judicial office. But while the Lord Chief Justice agrees, the Lord Chancellor may leave any vacancy in an office unfilled.

PART 7: SUPPLEMENTARY

Clause 31: Minor and consequential amendments etc.

106.     This clause introduces Schedules 4 and 5, which contain minor and consequential amendments, repeals and revocations. Part 3 of Schedule 4 includes provision amending Schedules 2 and 3 to the 1998 Act to permit devolution of functions relating to co-operation between the PSNI and An Garda Siochana.

107.     The clause also allows the Secretary of State to make further supplementary, consequential and transitional provision in connection with the provisions of Part 1 (registration of electors). In particular, it is envisaged that this power may be used to provide for Part 1 provisions to apply with modifications during any transitional period when other relevant Part 1 or EAB provisions have yet to come into force.

FINANCIAL EFFECTS OF THE BILL

108.     Any increase attributable to clause 24 in the maximum amount of loans to the Consolidated Fund of Northern Ireland will be borne by the National Loans Fund. The initial increase would not exceed £1000 million. The Secretary of State may, by order and with the consent of the Treasury, further increase the loans limit by a maximum of £500 million at any time.

109.     Financial assistance for energy purposes under Article 61 of the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6)), as substituted by clause 26, will be funded from the £59 million Environment and Renewable Energy Fund, which has already been established.

110.     It is anticipated that all other expenditure arising from this Bill will be met from within existing funding sources.