Select Committee on Delegated Powers and Deregulation Seventeenth Report

ANNEX (continued)


Memorandum by the Northern Ireland Office

        This memorandum describes the powers to make subordinate legislation which will be conferred by the Northern Ireland (Elections) Bill 1998. The Bill makes provision for the establishment of the New Northern Ireland Assembly and for the election of its members. Further amendments to the provisions about the Assembly will need to be made by the subsequent legislation giving effect to the agreement referred to in clause 1(1) of this Bill.

  Clause 2

2.        Subsection (5) of clause 2 confers power on the Secretary of State to make provision about the initial election to the Assembly (as to which, see clause 2(1)) and any matter relating to it. The order making powers are supplemented by clauses 2(6) and 6(2)(b).

3.        The power to make provision for the conduct of elections by subordinate legislation is included in various enactments. For example, similar provision was made in respect of the earlier Northern Ireland Assembly by section 2(5) of the Northern Ireland Assembly Act 1973 (c.17); in respect of elections to the European Parliament by paragraph 2 of Schedule 1 to the European Parliamentary Elections Act 1978 (c.10); and in respect of elections under the Northern Ireland (Entry to Negotiations, etc) Act 1996 (c.11) by paragraph 1 of Schedule 1 to that Act.

4.        The powers in clause 2(5) and (6) differ from those in section 2(5) and (6) of the 1973 Act in that they do not list all of the items in connection with an election which may be included in such an order. It is thought that such detail is unnecessary. Clause 2(6)(b) expressly mentions the deposit (for which provision was made by section 2(4) of the 1973 Act). Clause 2(6)(a) allows the inclusion of a cut-off date in respect of alterations to the register of electors like the one in respect of parliamentary and local government elections (section 11(3) of the Representation of the People Act 1983 (c.2), as substituted by Schedule 4 to the Representation of the People Act 1985 (c.50)).

5.        Following the precedents of the 1978 and 1996 Acts, the order is made subject to the affirmative resolution procedure by clause 6(2)(a).

  Clause 3

6.        Clause 2 provides for the initial election of members of the new Northern Ireland Assembly. Clause 3 confers power on the Secretary of State by order to provide for the filling of casual vacancies. By clause 6(2)(a), an order under this clause is subject to the affirmative resolution procedure.

7.        Clause 3(2) contemplates the provision for the filling of vacancies to be by by-elections or substitutes or by some other means. The other Bills this Session which introduce the use of proportional representation (the European Parliamentary Elections Bill, the Scotland Bill and the Government of Wales Bill) similarly contemplate the filling of vacancies by means other than by elections.

  Clause 8

8.        Clause 8(2) contains a provision used in many Bills which allows the Secretary of State to make an order bringing the Bill into force. An Order under clause 8(2) must be made by statutory instrument (clause 6(1)) but is not subject to any parliamentary procedure. However, the power to make a commencement order is subject to clause 8(3); this, in effect, requires a "Yes" vote in the referendum in Northern Ireland on the agreement referred to in clause 8(3)(b) if the power is to be exercised.

  The Schedule

9.  Paragraph 5 of the Schedule confers power on the Secretary of State to make provision by order for the payment of salaries and allowances to members of the Assembly. An order under this paragraph must be made by statutory instrument (clause 6(1)) but is not subject to any parliamentary procedure. The equivalent subordinate legislation in respect of members of the earlier Assembly (section 26(2) of the Northern Ireland Constitution Act 1973 (c.36)) was also not subject to parliamentary procedure. Allowances paid to persons elected under the 1996 Act were not set out in subordinate legislation (see section 6 of that Act).

10.Paragraph 10 of the Schedule confers power on the Secretary of State to determine the Assembly's standing orders. The orders will not be made by statutory instruments and are not subject to any form of parliamentary control. However, paragraph 35 of Strand One of the Agreement set out in Command Paper 3883 envisages that, during its initial period, the Assembly will devise its own standing orders. Accordingly, paragraph 10 is likely to apply during a transitional period only.

27 April 1998

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