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Clause 9: Department with policing and justice functions: nomination etc of Ministers
63. Clause 9 gives effect to Schedule 6 to the Bill. Schedule 6 amends Schedule 2 to the Northern Ireland (Miscellaneous Provisions) Act 2006, which itself inserts new Schedule 4A (department with policing and justice functions) into the Northern Ireland Act 1998. New Schedule 4A establishes alternative departmental structures for any new department with policing and justice functions, and the amendments made by Schedule 6 to the Bill make further provision about ministerial appointments to the new department.
Committees
Clause 10: Statutory committee for Office of First Minister and deputy First Minister
64. Clause 10 makes amendments to section 29 of the 1998 Act to provide for the establishment of a statutory committee to advise and assist the First and deputy First Ministers in the formulation of policies in relation to their responsibilities as the Ministers jointly in charge of the Office of the First Minister and deputy First Minister. The effect of this clause is to put the former non-statutory "Committee of the Centre", which was in operation prior to the suspension of the Northern Ireland Assembly, on a statutory footing.
Clause 11: Committee to review functioning of Assembly and Executive Committee
65. Clause 11 provides for a Committee to review the functioning of the Assembly and the Executive Committee.
66. Subsection (1) inserts a new section 29A and 29B into the 1998 Act to require the Assembly to establish a Committee to review the functioning of the Assembly and the Executive Committee. The detailed practical arrangements for the committee's operation are a matter for standing orders (new section 29A(1)), which are required to provide for the committee to make reports to the Assembly and to the Executive Committee (new section 29A(2)).
67. New section 29A(3) requires the new committee to make a report on the operation of the provisions of Parts 3 and 4 of the 1998 Act (which deal respectively with the devolved executive authorities and the Assembly) to the Secretary of State, the Assembly and the Executive Committee. The report might, for example, consider whether any changes should be made to the provisions for appointing Ministers, the provisions dealing with the exclusion of individuals and parties from holding Ministerial offices, and the arrangements for dealing with the calculation of cross-community support within the Assembly.
68. New section 29B(1) provides that standing orders must require the committee to consider the operation of the new arrangements for appointing Ministers (provided for in the new sections 16A to 16C, inserted by clause 8) and whether, in particular, these should continue in operation beyond the Assembly election in 2011 or whether the arrangements should revert to those set out in section 16 of the 1998 Act. The procedure to be followed if it recommends the latter is set out in subsections (2) to (5) of clause 11. In particular, if the recommendation receives cross-community support in the Assembly, subsection (2) requires the Secretary of State to bring forward an order to amend the 1998 Act and any other enactment so far as necessary to ensure that the procedure reverts to the section 16 one.
NSMC and BIC
Clause 12: North-South Ministerial Council and British-Irish Council
69. Clause 12 substitutes new sections 52A, 52B and 52C for section 52 of the 1998 Act, which deals with the North-South Ministerial Council and the British-Irish Council.
70. New section 52A(1) places a duty on the First and deputy First Ministers to ensure that the Executive Committee and Assembly are made aware of the date and agenda of forthcoming meetings of the NSMC or BIC and of the name of the Ministers or junior Ministers who are to attend the meeting.
71. New section 52A(2) provides that a Minister or junior Minister with responsibility for a matter included on the agenda for a meeting of either the NSMC or BIC shall be entitled to attend and participate in the meeting. He may also, under new section 52A(3), nominate another Minister or junior Minister to attend in his place. The responsible Minister or junior Minister is required (under new section 52A(4) and (6)) to notify the First and deputy First Ministers as to whether he intends to attend the meeting or to nominate someone to attend in his place, or neither. Where the First and deputy First Ministers haven't received notification under the section that the responsible Minister or junior Minister or a substitute will attend the meeting, new section 52A(5) places a duty on the First and deputy First Ministers to nominate someone to attend and participate in the meeting. The First and deputy First Minister are also obliged, as necessary, to make nominations of other Ministers or junior Ministers to attend to ensure cross-community participation in the meeting (see section 52A(7)).
72. New sections 52A (8) and (9) provide that when a matter for discussion at either Council is one that ought to be considered by the Executive Committee (by virtue of section 20(3) and new section 20(4) of the 1998 Act, the First Minister and deputy First Minister may attend the meeting, in addition to the Minister with lead responsibility or a Minister nominated under new section 52A(3).
73. New section 52B(1) and (2) requires Ministers and junior Ministers to participate in NSMC and BIC meetings they are attending. New section 52B(3) requires the responsible Minister or junior Minister to ensure that any other Minister or junior Minister attending an NSMC or BIC meeting in his place has access to whatever information is necessary to enable that person to participate fully in the meeting. However, if the lead Minister has provided insufficient information to enable the nominated Minister's full participation, new section 52B(4) makes provision for the First Minister and deputy First Minister acting jointly to request the information. The lead Minister is obliged to comply with that request.
74. New section 52B(5) entitles a person who has been nominated to attend a meeting on behalf of another Minister or junior Minister to enter into arrangements and agreements on his behalf. New section 52B(6) provides that any Minister attending an NSMC or BIC meeting must act in accordance with any relevant decisions of the Assembly or Executive Committee.
75. New section 52C makes supplementary provision for the operation of new sections 52A and 52B, including providing for the First and deputy First Ministers acting jointly to determine which Minister or junior Minister has responsibility for a matter in the event of there being a dispute. It also places a duty on Ministers who attend either Council to make an oral report (unless standing orders authorise it to be made in writing) to both the Assembly and Executive Committee on their attendance.
Miscellaneous
Clause 13: Community designation
76. Clause 13 provides for section 4 of the 1998 Act to be amended to require standing orders of the Assembly to provide that an MLA may only change his community designation of "Nationalist", "Unionist" or "Other" if he changes his political party affiliation between elections.
Clause 14: Power of Executive Committee to call for witnesses and documents
77. Clause 14 inserts a new section 28C into the 1998 Act to give the Executive Committee the power to call for witnesses and documents. The section applies the provisions of section 44 of the 1998 Act (which provides the Assembly and its Committees with the power to compel witnesses and documents) to the Executive Committee with certain modifications. The power is exercisable in relation to senior civil servants working in Northern Ireland Departments where a matter falls within the Executive's functions under section 20(3) and (4) of the 1998 Act.
Clause 15: Strategies in relation to Irish language and Ulster Scots language etc
78. Clause 15 of the Bill inserts a new section 28D into the 1998 Act. Section 28D places a duty on the incoming Executive Committee to adopt a strategy relating to the enhancement and protection of the development of the Irish language and also to adopt a strategy relating to the enhancement and development of the Ulster Scots language, heritage and culture.
79. Subsection (3) of new section 28D of the 1998 Act provides for the Executive Committee to review and revise these strategies.
Clause 16: Strategy in relation to poverty and social exclusion
80. Clause 16 inserts a new section 28E into the 1998 Act. The new section places a duty on the Executive Committee to adopt a strategy for tackling poverty and social exclusion and patterns of deprivation; and for that strategy to be based on objective need.
81. Subsection (2) of new section 28E places a duty on the Executive Committee to keep the strategy under review, and gives the Executive Committee a power to revise the strategy or adopt a new strategy.
Clause 17: Vacancy in the Assembly
82. Clause 17 inserts a new paragraph 5 into Schedule 6 to the 1998 Act. This enables the Assembly to make standing orders preserving the exercise of the right to vote in the Assembly in cases where a vacancy in membership would otherwise prevent this right from being exercised. Paragraph 9(6) of Schedule 1 enables equivalent standing orders to be made for the Transitional Assembly. The standing orders could, for example, provide for voting in the Transitional Assembly to take account of any seats won by a party, but subsequently vacated and not filled as a result of clause 3(2).
Clause 18: Report on the progress towards devolution of policing and justice matters
83. Clause 18 places an obligation on the Assembly to provide a report to the Secretary of State before 27 March 2008 on its consideration of policing and justice matters. The report is to address:
- the preparations the Assembly has made, and intends to make, for the devolution of such matters;
- which of the matters the Assembly are likely to seek to be devolved; and
- whether a request is likely to be made before 1 May 2008 that responsibility for such matters should be devolved.
The Secretary of State must lay the report before Parliament.
84. Subsections (4) to (6) contain technical amendments to the definition of a "devolved policing and justice matter". They remove the adjective "devolved" from the definitions contained in sections 4(2A), 4(6) and 21A(8)(b) of the 1998 Act (inserted by the Northern Ireland (Miscellaneous Provisions) Act 2006) to clarify that they remain reserved until devolved.
85. The clause does not affect any of the safeguards on the transfer of responsibility set out in section 4 of the 1998 Act, as amended by the Northern Ireland (Miscellaneous Provisions) Act 2006. It remains the case that the First Minister and deputy First Minister, acting jointly, must table a motion for a resolution of the Assembly that policing and justice matters be devolved; the Assembly must so resolve with cross-community support; the Secretary of State must concur and lay a draft order before Parliament; and Parliament must approve that order.
Clause 19: Minor and consequential amendments
86. Clause 19 gives effect to Schedule 7 which makes minor and consequential amendments relating to Part 2 of the Bill.
PART 3: OTHER AMENDMENTS
Policing
Clause 20: District policing partnerships
87. Clause 20 gives effect to Schedules 8 and 9 which make provision in relation to district policing partnerships, including Belfast sub-groups.
Education
Clause 21: Amendment of Education (Northern Ireland) Order 2006 etc
88. Clause 21 amends the Education (Northern Ireland) Order 2006 in relation to the abolition of academic selection.
89. Currently, the Education (Northern Ireland) Order 2006 includes provisions which prohibit the use of academic ability as an admissions criterion but defers the provisions' commencement and makes them subject to an affirmative resolution of the Assembly, provided the Assembly is restored by 24 November. Subsection (1) of clause 21 further defers the commencement of the provisions, in line with the St Andrews Agreement timetable.
90. In the event of the repeal of the Northern Ireland Act 2000 under Schedule 4 to this Bill, commencement of the provisions prohibiting academic selection will be subject to an affirmative resolution of the Assembly. However, if Schedule 3 to this Bill is invoked, the provisions will come into operation on that date. In either case the prohibition will take effect only in relation to admissions on or after 31 July 2010.
91. Clause 21 also provides that, if the Northern Ireland Act 2000 is repealed under Schedule 4, schools admissions regulations may make different provision for different descriptions of schools. This will ensure that a restored Assembly's options to agree new admissions arrangements are not constrained by a requirement for all types of schools to use the same admissions criteria.
PART 4: SUPPLEMENTAL
Clause 22: Repeal of the 2006 Act
92. Clause 22 repeals the Northern Ireland Act 2006 in its entirety. Without its repeal, the provisions of Schedule 3 to that Act would have come into immediate effect on 25 November 2006, with the result that the next election of the Northern Ireland Assembly would have been postponed indefinitely.
Clause 23: Power to make consequential provision etc
93. Clause 23 provides for the Secretary of State to make by order any supplementary, incidental or consequential provision and any transitional or saving provision that may be needed as a result of the Bill. The power is mainly intended to be used to make any changes that may be needed in consequence of the coming into force of Schedule 2 or 3, and for the transitional or savings provision that might be required as a result of the repeal of the 2000 Act.
Clause 24: Parliamentary procedure for orders under section 23
94. Clause 24 provides for the affirmative resolution procedure to apply to instruments made under clause 23, with the possibility of expedition, where an instrument contains amendments or repeals of Acts or Northern Ireland legislation. Otherwise, the negative resolution procedure applies.
SCHEDULE 1: THE TRANSITIONAL ASSEMBLY
95. Schedule 1 makes provision relating to the operation of the Transitional Assembly. Paragraph 1(1) provides that the Presiding Officer will have the authority to specify when and where the Transitional Assembly will meet and that the Assembly must meet on 24th November. Paragraph 1(2) provides that the Secretary of State may instead direct the Transitional Assembly to meet at a certain time and place. It is envisaged that Paragraph 1(2) will be used only where it appears necessary to ensure the successful operation of the Transitional Assembly.
96. Paragraph 2(1) provides that proceedings in the Transitional Assembly will be conducted in accordance with the standing orders (as defined in paragraph 8). Paragraph 2(2) provides that the Secretary of State may direct that proceedings are conducted differently; again it is envisaged that this provision will only be used where necessary to ensure the successful operation of the Transitional Assembly.
97. Paragraph 3 provides for proceedings in the Transitional Assembly to include the nominations for the offices of First and Deputy First Ministers of the Northern Ireland Assembly. Both Ministers would take up office when the Northern Ireland Assembly is restored. Paragraph 3(2) makes clear that the nominations may still take place despite the Northern Ireland Assembly being suspended under the 2000 Act.
98. Paragraph 4 places a duty on the Secretary of State to prepare a draft Ministerial Code, in the event of failure on the part of the Transitional Assembly to prepare and approve the draft Ministerial Code before 24 March 2007. Any Code thus prepared would become Ministerial Code required by new section 28A of the 1998 Act, until amended or replaced under subsection (2)(a) of that section. The Code must comply with the requirements of section 28A(5) to (8) and may include other provisions.
99. Paragraph 5 requires the Transitional Assembly to prepare and approve a draft standing orders for the Northern Ireland Assembly, by means of cross-community support, before 24 March 2007. It specifies that once the draft standing orders have been approved under the process set out in sub-paragraph (3) (that is, with cross-community support) they shall become standing orders of the Northern Ireland Assembly.
100. Sub-paragraph (4) places a duty on the Secretary of State to prepare draft Standing Orders, in the event of failure on the part of the Transitional Assembly to prepare and approve draft standing orders before 24 March 2007. The standing orders thus prepared shall become the standing orders of the Northern Ireland Assembly, until amended or replaced by the Northern Ireland Assembly under section 41 of the 1998 Act.
101. Sub-paragraph (5) sets out the requirements of the draft standing rders prepared by the Secretary of State under sub-paragraph (6) and provides that such a Code must, so far as practicable, be in the form of the former standing orders of Northern Ireland Assembly immediately prior to suspension, but subject to any to any amendments to the standing orders approved by cross-community support in the
Transitional Assembly prior to 24 March 2007. In addition the standing orders must comply with the requirements set out in the 1998 Act (as it is to have effect on or after 26 March 2007) and may include other provisions.
102. Paragraph 6(1) provides that the Transitional Assembly will have a presiding officer and no more than three Deputy Presiding officers. Paragraphs 5(2) and (3) provide that the Presiding Officer and Deputy Presiding Officers of the Transitional Assembly will be those that held those offices in the Assembly established by the Northern Ireland Act 2006 immediately before Schedule 1 comes into force.
103. Paragraph 6(4) provides that the Transitional Assembly may elect a person to fill any vacancy in the office of Presiding Officer or Deputy Presiding Officer or replace current office-holders if members believe that he/she is unable, unfit or unwilling to perform his/her functions. Paragraph 6(5) provides that any such election must be by cross-community vote (as defined in paragraph 10). Paragraph 6(6) provides that the Secretary of State may appoint a Presiding Officer or Deputy Presiding Officer if a vacancy has arisen and the Transitional Assembly have not appointed someone to fill the vacancy within two weeks. If the Secretary of State believes that a Presiding Officer or Deputy Presiding Officer is unfit, unable or unwilling to perform his/her functions, and the Officer has not been replaced by the Transitional Assembly within 2 weeks, under paragraph 7 the Secretary of State may appoint a person to replace the Officer
104. Paragraph 7 provides that the Secretary of State must ensure the provision of staff, premises and other facilities, with sub-paragraph (2) providing for the cost of this to be paid out of the Consolidated Fund of Northern Ireland. Paragraph 8 provides for any statement made by a member for the purposes of the Assembly to be privileged from action for defamation, unless proved to have been motivated by malice.
105. Paragraph 9 deals with the standing orders of the Transitional Assembly (as opposed to the draft standing orders for the Northern Ireland Assembly that paragraph 5 provides for). Paragraph 9(2) provides that the initial standing orders shall be determined by the Secretary of State and notified to the Presiding Officer or any Deputy Presiding Officer. Paragraph 9(4) provides that the Transitional Assembly may amend or replace them, but cannot do so without cross-community support (as defined in paragraph 11). Paragraph 9(3) provides that the Secretary of State may add to or amend the standing orders but cannot do so in a manner inconsistent with any amendment made by the Transitional Assembly under paragraph 9(4). Paragraph 9(5) provides that the standing orders may include provisions similar to those of the Northern Ireland Assembly (under s.41 of the 1998 Act) or any direction made by the Secretary of State under paragraph 4 of schedule 1 to the 2006 Act.
106. Paragraph 9(6) provides that the standing orders may include provision under paragraph 5 of Schedule 6 to the 1998 Act (as amended by clause 17 of the Bill) which deals with any vacancy in the Assembly. Paragraph 9(7) also makes clear that any provision made by the standing orders for the purposes of nominating a First and Deputy First Minister under paragraph 3, may include provision which is similar to those included sections 16A to 16C of the 1998 Act (as amended by clause 7 of the Bill).
107. Paragraph 9(8) ensures that the standing orders must cater for any additional nominations under paragraph 3 of Schedule 1, if a nomination made under paragraph 3 ceases to have effect.
108. Paragraph 10(1) provides that persons who are members of the Assembly established by the 2006 Act, immediately before Schedule 1 comes into force, will be deemed to have signed the roll of membership in the Transitional Assembly. Similarly, paragraph 9(2) provides that those same members will be deemed to have designated themselves Nationalist, Unionist or Other in the Transitional Assembly in line with their previous designation in the Assembly established by the Northern Ireland Act 2006. Paragraph 11 provides the definition of "cross-community support" referred to elsewhere in the Schedule.
SCHEDULE 2: RESTORATION OF DEVOLVED GOVERNMENT ON 26 MARCH 2007
109. Schedule 2 will come into force automatically on 25 March 2007, unless the Secretary of State has brought Schedule 3 into force before that date (see clause 2). Paragraph 2(1) ensures that when a restoration order under clause 2(2) comes into force, those who previously held Ministerial office (and certain other offices) at the time of suspension will not resume that office. Paragraph 2(2) and (3) makes clear that those nominated under Paragraph 3 of Schedule 1 will hold the offices of First Minister and Deputy First Minister when the restoration order comes into force. However, paragraph 1(4) is clear that those Ministers cannot take office until they have affirmed the pledge of office. Paragraph 1(5) requires the other Ministerial offices of the Northern Ireland Assembly to be filled by applying section 18(2) to (6) of the 1998 Act (i.e the d'Hondt mechanism) on 26th March 2007. When d'Hondt is run, under paragraph 5 of the Schedule, it is the first day on which the Transitional Assembly meets following the election that will be used to determine the number of Assembly seats held by members of the parties.
110. Paragraph 3 provides that the Presiding Officer and Deputy Presiding Officers of the Transitional Assembly immediately before restoration, shall be deemed to have been elected Presiding Officer and Deputy Presiding Officers of the Northern Ireland Assembly (under s.39(1) and (2) of the 1998 Act). This means that the Northern Ireland Assembly need not elect a Presiding Officer or Deputy Presiding Officers as its first business, but may choose to replace them at any point.
111. Paragraph 4 provides that the restoration order under clause 2(2) may make any other necessary provision required in order to carry forward the preparations for devolution undertaken by the Transitional Assembly members, and treat them as having been undertaken by the Northern Ireland Assembly. For example, it could be used to avoid the need for members to sign the Roll again. Paragraph 4(2) disapplies section 2(3) of the 2000 Act, which provides that the Secretary of State must take account of a review conducted under the 2000 Act. This is to ensure that the restoration order can be made quickly.
112. Paragraphs 5 and 6 provide for modifications to how "d'hondt" is run in both section 29(3) of the 1998 Act (relating to Assembly Committees) and paragraph 7(7) of Schedule 1 to the Police (Northern Ireland) Act 2000 (relating to political members of the Northern Ireland Policing Board). In both Acts, the meaning of S is changed so that the day when the Assembly is considered to have first met becomes the first day the Transitional Assembly meets after the 7th March election.
113. Paragraph 7 provides that clauses 1(1) and (2) and Schedule 1 shall be repealed when Schedule 2 comes into force. This will ensure that the Transitional Assembly will cease to exist on 25th March 2007.
SCHEDULE 3: NON-COMPLIANCE WITH THE ST ANDREWS AGREEMENT TIMETABLE
114. Schedule 3 makes provision for the situation where an Executive is not formed in accordance with Schedule 2 or, before 25th March 2007, the Secretary of State considers that it will not be formed. Paragraph 1 of Schedule 3 provides for the dissolution of the Northern Ireland Assembly either side of the election provided for in clause 3.
115. Paragraph 2 substitutes section 31(2) of the 1998 Act. It provides that the next Northern Ireland Assembly election shall not be held until such time as the Secretary of State specifies by order. New section 31(2)(a) provides that, if Schedule 3 comes into force before the election provided for in clause 3, then that election will be indefinitely postponed. New section 31(2)(b) provides that, if Schedule 3 comes into force after the election provided for in clause 3, then the next election under s.31 of the 1998 Act will be indefinitely postponed.
116. The date of the rescheduled election, by virtue of new section 31(2A) of the 1998 Act, must be after the date specified under section 31(1) of the 1998 Act (that is, the first Thursday of May 2007).
117. New section 31(2B) to (2D) of the 1998 Act provides for the order to make amendments the Secretary of State considers appropriate and specifies that this may include: amending provisions of Acts (other than the 1998 Act) and of Northern Ireland legislation; making provision modifying the duties of the Chief Electoral
Officer for Northern Ireland; and making any supplementary, incidental or consequential provision.
118. Paragraph 3 sets out the provisions of the Bill that would be repealed if Schedule 3 came into force: section (1) and (2) and Schedule 1, providing for the end of the Transitional Assembly; section 3(1), ensuring that there will be no election; Schedule 2 and 4, ensuring that there will be no restoration and the 2000 Act will remain in force.
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