ANNEX 1
NORTHERN IRELAND BILL
Memorandum by the Northern Ireland Office
1. This Memorandum, prepared
by the Northern Ireland Office, identifies those provisions in
the Northern Ireland Bill which confer powers to make delegated
legislation. It describes the purposes of every such power, explains
why the matter is to be left to delegated legislation and explains
the degree of Parliamentary control involved.
Outline and Scope of the Bill
2. The Northern Ireland Bill
has one simple overriding purpose, namely, to implement the Belfast
Agreement of 10 April 1998 reached at multi-party talks on Northern
Ireland. The Belfast Agreement was endorsed by more than 71% of
voters in Northern Ireland in the referendum on 22 May 1998. The
Agreement itself is set out in Command Paper 3883 and a copy is
attached as an Annex to this Memorandum. In the words of the Secretary
of State for Northern Ireland on introducing the Bill into the
House of Commons; "The Bill represents the triple lock -
people, parties and now Parliament" (Hansard, 20
July 1998, Volume 316, No. 210, Col. 814).
3. In implementing the Belfast
Agreement the Bill aims to build on and supersede the arrangements
currently contained in the Northern Ireland Constitution Act 1973
(c. 36) (the 1973 Act). These arrangements, which themselves followed
on from the home rule scheme contained in Government of Ireland
Act 1920 (c. 67) (the 1920 Act), were for the most part suspended
under the Northern Ireland Act 1974 (c. 28) (the 1974 Act). A
further model for much of the Bill has been the Scotland Bill
(references are to the 20 May 1998 print) which is the subject
of the 24th Report of 1997/98 by this Select Committee on Delegated
Powers and Deregulation (this Committee).
Structure of the Bill
4. The Northern Ireland Bill
is divided into eight Parts as follows (a more detailed account
is contained in the Notes on Clauses dated October 1998 and made
available to members of the House of Lords):
(a) Part I of the Bill
deals with the status of Northern Ireland and provides for the
initial and later devolution of functions.
(b) Part II provides for
the legislative powers and competence of the Northern Ireland
Assembly (the Assembly) established under the Northern Ireland
(Elections) Act 1998 (c. 12) (the 1998 Act).
(c) Part III deals with
the devolved executive authorities in Northern Ireland by providing
for the election of a First and Deputy First Minister and the
allocation of further Ministerial offices under the umbrella of
an Executive Committee of the Assembly. These Ministers will in
turn direct and control the pre-existing Northern Ireland departments
subject to the possibility of further departmental re-organisation
by the Assembly. Constraints are also placed on the powers of
the Ministers and departments in exercising their functions.
(d) Part IV provides for
elections to and the proceedings of the Assembly.
(e) Part V makes provision
for financing the devolved Administration and includes audit and
accounting requirements.
(f) Part VI establishes
and empowers the Northern Ireland Human Rights Commission and
the Equality Commission of Northern Ireland and places related
duties and restrictions on public authorities in Northern Ireland.
(g) Part VII contain various
miscellaneous and general provisions.
(h) Part VIII contain
various supplementary provisions.
General
5. This Memorandum identifies
thirty distinct provisions in the Bill which delegate legislative
power in the manner and for the reasons set out below. There is
a limited number of Henry VIII clauses based for the most part
on pre-existing legislation.
6. This Memorandum does not
treat the Assembly itself as an executive body exercising delegated
legislative powers. There is no doubt that Part II of the Bill
delegates extensive legislative powers to the Assembly subject
to various conditions and the proviso in clause 5(6) that the
powers of the Parliament of the United Kingdom are unaffected
thereby. However, following Powell v Apollo Candle Company
Ltd (1885) 10 App. Cas. 282 (PC) on the colonial legislature
of New South Wales, subordinate legislatures such as the Assembly
are in many senses not to be regarded as delegates of Parliament
subject to the maxim delegatus delegare non potest and
instead enjoy "plenary powers of legislation" in those
areas within their jurisdiction (see further Volume 6 of Halsbury's
Laws of England (4th ed., reissue 1991 at paras. 1021-1037
and para. 1027 esp.)).
7. The Assembly itself will
be competent to delegate legislative powers on other bodies as
were the Parliament of Northern Ireland established under the
1920 Act and the Northern Ireland Assembly established under the
1973 Act. In this regard it is expected that Acts of the Assembly
authorising the making of subordinate legislation will specify
procedures for the scrutiny thereof. The expectation is that previous
practices will be followed so that most pieces of delegated legislation
will be "subject to negative resolution" in accordance
with section 41(6) of the Interpretation Act (Northern Ireland)
1954 (c.33) (NI). More significant pieces of legislation will
be further "subject to affirmative resolution" as defined
in section 41(4) of the Interpretation Act (Northern Ireland)
1954, under this procedure the instrument is made but only comes
into force on being approved. A further procedure is also available
akin to the draft affirmative procedure in Westminster. As these
matters will be dealt with independently of the Bill it is not
proposed to say any more about them in this Memorandum.
8. Similarly, this Memorandum
does not treat the powers conferred on the Assembly under clauses
29(2), 38 and 39 as delegated legislative powers within the remit
of this Committee.
9. Accordingly, the powers
of the Assembly are not dealt with in this Memorandum and we trust
that this approach meets with the approval of the Committee. Our
understanding is that a similar approach was considered acceptable
by the Committee with regard to the powers of the Scottish Parliament
under the Scotland Bill and it can also be noted that Parliament
nevertheless has a role to play under clause 13 in supervising
certain Bills of the Assembly. If the Committee wishes to receive
submissions on these powers of the Assembly then these will be
produced.
Clause 3: Power to appoint a day
for the commencement of Parts II and III of the Bill
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions: | Her
Majesty in Council.
Order in Council submitted by the Secretary of State.
Draft affirmative (each House of Parliament).
Section 2 of the 1973 Act. |
10. Subsection (1) of clause
3 enables an Order in Council to be made appointing a day for
the commencement of Parts II and III (the devolution order). The
draft of any such Order must be laid before each House of Parliament
by the Secretary of State. Subsection (2) provides that if the
draft is approved by each House of Parliament the Secretary of
State shall submit it to Her Majesty who may make the Order.
11. The powers in clause 3
are necessary to enable devolution to take place. A similar power
with similar safeguards was provided by section 2 of the 1973
Act. It is submitted that the power is an appropriate one. It
is submitted that there is an appropriate level of control because
the Order in Council must be approved by both Houses of Parliament
before it can be made.
Clause 4(2): Power to make reserved
matters transferred and vice versa
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions: | Her
Majesty in Council.
Order in Council submitted by the Secretary of State.
Draft affirmative (each House of Parliament).
Section 3of the 1973 Act. |
12. Clause 4 provides for the
categories of transferred, excepted and reserved matters. The
Assembly can legislate without restriction on transferred matters
(which are defined by subsection (1) as matters which are not
excepted or reserved). It cannot legislate on excepted matters
unless the excepted matter is ancillary to a reserved or transferred
matter and the Secretary of State consents (clause 6(2)(b)). It
can legislate on reserved matters with the consent of the Secretary
of State (clause 7). Excepted and reserved matters are specified
in schedules 2 and 3 respectively.
13. Subsections (2) to (4)
of clause 4 enable an Order in Council to be made so that a matter
becomes transferred instead of reserved or reserved instead of
transferred. Subsection (4) requires the draft of any such Order
to be approved by resolution of each House of Parliament. In addition,
subsection (3) prohibits the Secretary of State from laying the
draft of any such Order before Parliament unless the Assembly
has passed with cross-community support (as defined in subsection
(5)) a resolution praying that the matter concerned should cease
to be or, as the case may be, become a reserved matter.
14. The powers in clause 4
are necessary to allow some movement between the reserved and
transferred categories. A similar power with similar safeguards
was provided by section 3 of the 1973 Act. It is submitted that
the power is an appropriate one. It is also submitted that there
is an appropriate level of control because the power can only
be exercised if the Assembly and each House of Parliament agrees.
Clause 13(4): Power to repeal
Acts of the Assembly
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions: | Her
Majesty in Council.
Order in Council.
None.
Section 6 of the 1973 Act. |
15. Where the Secretary of
State has consented to an Assembly Bill (in pursuance of clause
7 of the Bill) he may not submit it to Her Majesty for Royal Assent
without allowing both Houses of Parliament the opportunity to
pass a motion against this. However, if the Secretary of State
considers that the Assembly Bill is urgent he may submit it to
for Royal Assent without giving Parliament this opportunity (sub-section
(3)). In such circumstances, the Secretary of State must lay the
Act of the Assembly (if given Royal Assent) before Parliament
and so that it can be subjected to belated scrutiny (sub-section
4). If a motion is carried against the Assembly Act in either
House of Parliament then Her Majesty may repeal that Act by Order
in Council.
16. The Secretary of State's
power to submit Bills of the Assembly to Her Majesty for Royal
Assent is not itself a delegated legislative power. Rather Parliament's
power to move against the submission of certain Bills which deal
with reserved and excepted matters represents a way in which Parliament
is able to supervise those Acts of the Assembly which deal with
excepted and reserved matters, that is to say, matters of prima
facie concern to the United Kingdom Parliament. Accordingly,
Her Majesty's power to repeal Acts of the Assembly which Parliament
would have moved against if it had been given the opportunity
in the first place is a reinforcement of Parliament's powers.
It is submitted that any Order in Council made by Her Majesty
at Parliament's request under this clause need not be subjected
to further Parliamentary scrutiny. These provisions are modelled
on section 6 of the 1973 Act.
Clause 15(3): Power to provide for
more than ten Northern Ireland Ministerial offices
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions: | The Secretary of State.
Statutory instrument.
Negative resolution (either House of Parliament).
Clause 78(1) of the Bill. |
17. Clause 15 provides for
the determination of the number and functions of Northern Ireland
Ministers, their appointment and tenure of office.
18. Clause 15(1)(a) provides
that the First Minister and deputy First Minister acting jointly
shall determine the number of Northern Ireland Ministers. It may
be necessary to increase the number of Ministers if, for example,
new departments are created by Act of the Assembly under clause
17(2) or further matters are devolved by virtue of an Order under
clause 4.
19. Subsection (3) therefore
provides that the number of Northern Ireland Ministers shall not
exceed 10 but that the Secretary of State may provide for a greater
number than this by order. Subsection 78(1) provides that an order
under section 15(3) shall be made by statutory instrument which
shall be subject to annulment in pursuance of a resolution of
either House of Parliament.
20. It is submitted that it
is appropriate to leave provision about increasing the number
of Northern Ireland Ministers to subordinate legislation and that
an appropriate level of Parliamentary control is provided over
the exercise of these powers.
Clause 18(2): Power to exercise,
as respects transferred matters, the prerogative and other executive
functions of Her Majesty in relation to Northern Ireland
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions: | The First Minister and deputy First Minister acting jointly.
Preregative order or regulation.
None.
Section 7 of the 1973 Act and Letters Patent of 20 December 1973. |
21. Under the 1920 Act, and section
8 thereof in particular, the Governor of Northern Ireland was
empowered "as respects Irish services" to exercise on
behalf of His Majesty any prerogative or executive power delegated
to him by His Majesty. Broadly speaking, "Irish services"
were public services in connection with the administration of
transferred matters. The delegation of prerogative and executive
powers envisaged by section 8 of the 1920 Act was first effected
under Letters Patent of 27 April 1921 which constituted the office
of Lord Lieutenant and authorised him:
to do and execute all things
which by the right, usage, and custom of Ireland have heretofore
appertained to the office of Lord Lieutenant, or which may appertain
thereto by virtue of the said recited Act [of 1920].
22. These Letters Patent were revoked
and replaced by Letters Patent of 9 December 1922 (accompanied
by a fresh set of Instructions) constituting the renamed office
of Governor of Northern Ireland and authorising him:
to do and execute in due
manner as respects Northern Ireland all things which by virtue
of the [1920] Act and our said Letters Patent of 27 April 1921
or otherwise belonged to the office of Lord Lieutenant at the
time of the passing of the Irish Free State Constitution Act 1922 .
. .
23. Under the scheme of the 1973
Act, the Secretary of State succeeded the Governor as Her Majesty's
principal officer and representative in Northern Ireland. The
delegation of the prerogative and other executive powers exercisable
as respects transferred matters, alluded to in section 7(2) of
1973 Act, was effected by new Letters Patent of 20 December 1973
as follows:
We do hereby delegate.
. . to Our Secretary of State all Our prerogative and other executive
powers in relation to Northern Ireland as respects any matter
which is for the time being a transferred matter within the meaning
of [NICA].
24. In this regard, clause 18 of
the Bill is intended to succeed section 7 of the 1973 Act in providing
that the First and deputy First Minister will, on the appointed
day, assume the prerogative and executive powers vested in her
Majesty and currently conferred on the Secretary of State by the
Letters Patent of 1973. The main change is that this delegation
will now take place on the face of the Bill rather than off it
by way of Letters Patent.
25. Broadly speaking there are two
types of non-statutory prerogative power which subsist "as
respects transferred matters" and are in issue here, those
of a substantive nature which concern a particular area of activity
and those of an ancillary nature which relate to largely managerial
matters attaching to other substantive areas of governmental activity.
The only substantive limb of the prerogative thus far identified
as being truly exercisable "as respects transferred matters",
and therefore covered by clause 18, relates to the organisation
of the Northern Ireland Civil Service. The residue of ancillary
prerogative powers is variously relied upon to justify, for example,
the dissemination or publication of official information by way
of leaflets and advertisements and the creation of committees
and advisory bodies.
26. Clause 18 does not bear upon
any statutory powers or functions and it will only affect the
prerogative and executive powers currently delegated to the Secretary
of State under the 1973 Act and the Letters Patent of 1973. Clause
18 will not give rise to any diminution or alteration in the pre-existing
statutory and prerogative powers of any other person or body apart
from the Secretary of State for Northern Ireland. It is submitted
that it is appropriate for these powers to be delegated to the
First and deputy First Minister as a feature of the general devolution
of power in the transferred field to Northern Ireland. The First
and deputy First Minister will be accountable to the Assembly
in this regard and no previous Parliamentary scrutiny attached
to the exercise of these powers under the Letters Patent of 1973.
Clause 20: Powers to: prohibit action
incompatible with international obligations (subsection (1));
require action to give effect to international obligations (subsection
(2)); and revoke subordinate legislation in certain circumstances
(subsection (4))
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions:
| The Secretary of State.
Statutory instrument.
Negative resolution (either House of Parliament).
Clause 78(1) of the Bill, clauses 54 and 102 of the Scotland Bill and sections 108 and 154 of the Government of Wales Act 1998 (c. 38). |
27. Clause 20(1) will enable the
Secretary of State by order to direct that the Northern Ireland
Ministers and departments refrain from taking action incompatible
with the United Kingdom's international obligations (as defined
in clause 80(1)). Similarly, clause 20(2) will enable the Secretary
of State by order to direct that the Northern Ireland Ministers
and departments take action required for the purpose of giving
effect to the United Kingdom's international obligations. Clause
20(3) makes it clear that the type of action covered can include
making, confirming or approving subordinate legislation and the
type of action that can be required under subsection (2) can include
the introduction of a Bill into the Assembly.
28. Clause 20(4) also enables the
Secretary of State by order to revoke Northern Ireland subordinate
legislation which he considers would be incompatible with the
United Kingdom's international obligations or which would have
an adverse effect on the excepted field. Subsection (5) provides
that these orders may have retrospective effect but requires the
Secretary of State to give reasons for using the power. It is
submitted that retrospection may be necessary here in order to
make the revocation take effect from the coming into force of
the instrument which is to be revoked.
29. Under clause 78(1), orders made
under clause 20 must be made by statutory instrument subject to
the negative resolution procedure in either House of Parliament.
It is not thought that clause 20 orders should be subject to the
affirmative procedure because they might need to be made quickly
(possibly whilst Parliament is not sitting) in order to ensure
that the United Kingdom as a whole does not fall into breach of
its international and treaty obligations. In this regard, clause
20 is in line with clauses 54 and 102 of the Scotland Bill and
sections 108 and 154 of the Government of Wales Act 1998.
Clause 24(3): Power to bring forward
or delay the date of polls for the election of each Assembly by
no more than two months
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions: | The Secretary of State.
Statutory instrument.
Negative resolution (either House of Parliament).
Clause 78(1) of the Bill and section 27(4) of the 1973 Act. |
30. Subsection (1) of clause 24
provides for ordinary elections to the Assembly to take place
at four yearly intervals on the first Thursday in May. Subsection
(2) makes special provision in respect of the Assembly replacing
the current Assembly and provides for the poll to take place on
Thursday 1 May 2003.
31. Subsection (3) enables the Secretary
of State by order to bring forward the date of the poll by no
more than two months or to delay it by no longer than that period.
By virtue of clause 78(1), such orders are subject to the negative
resolution procedure.
32. Precedents exist for powers
to alter by subordinate legislation polling day in the context
of other elections for which the date of the poll is fixed; see,
for example, section 37 of the Representation of the People Act
1983 (c. 2) in respect of local government elections. In contrast
to an order under that provision (which is not subject to any
Parliamentary control), an order under this provision is subject
to the negative resolution procedure.
33. It is submitted that, even though
such a power may be exercised only rarely, some flexibility to
allow the date of a poll to be altered is desirable in case the
date fixed proves inconvenient or clashes with a religious festival.
It is also submitted that the negative resolution procedure provides
an appropriate level of Parliamentary control.
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