Select Committee on Delegated Powers and Deregulation Thirty-Second Report



Clause 24(4):  Power to set the date of the poll for the next election of the Assembly
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions:
Her Majesty in Council.
Order in Council.
Draft affirmative (each House of Parliament).
Section 27(5) of the Act.
34.  Clause 24 makes provision for elections to the Assembly and its dissolution. Subsection (4) provides that Her Majesty may, by Order in Council, direct that the date of the poll for the election shall, instead of being determined in accordance with subsections (1) and (2) be such earlier date as may be specified in the Order. The power may be exercised if it appears to Her Majesty that: Ministers are not able to carry out their functions; if they were to resign the persons who would be likely to replace them would not be able to carry out their functions; and it is in the public interest that the Assembly should be dissolved.

35.  Subsection (5) provides that no recommendation shall be made to Her Majesty to make an Order unless a draft of the Order has been laid before and approved by resolution of each House of Parliament.

36.  Precedent exists for early dissolution of an Assembly by Order in Council subject to affirmative resolution by both Houses of Parliament, in section 27(5) of the 1973 Act. It is submitted that, subject to these controls, the power is an appropriate one. The policy in this area is under review however and the intention is to table amendments leaving the exercise of this power to the Assembly rather than the Secretary of State.

Clause 24(6):  Power to determine the "minimum period" for the purposes of clause 24
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.
37.  Any dissolution of the Assembly under clause 24 will lead automatically to the holding of fresh Assembly elections and there is no possibility of a dissolution sine die. In order that elections can be held for each new Assembly on or around the first Thursday in May in the fourth calendar year after its predecessor was elected, each Assembly will be dissolved just short of this time. Under clause 24, the period between dissolution and the next election is in effect the "minimum period" and this must be sufficiently long to allow for election preparations, campaigning and so on. Quite how long the "minimum period" should last for may depend on other circumstances and the Secretary of State is therefore to be given power to vary this by statutory instrument subject to the negative resolution procedure.

38.  This power needs to be delegated for reasons of pragmatism and flexibility and it is submitted that the level of Parliamentary control proposed is sufficient.

Clause 26(4) & (6): Power to make provision about elections and related matters
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions:
The Secretary of State.
Statutory instrument.
Draft affirmative (each House of Parliament).
Clause 78(2) of the Bill.
39.  Subsections (4) to (6) of clause 26 contain powers which appear in other enactments allowing the Secretary of State to make provision about elections by order. Under clause 78(2)(b) any such order is subject to the affirmative resolution procedure.

40.  Clause 26, in effect, re-enacts section 2(5) of the 1998 Act which applied only in respect of the first elections to the new Assembly. The only material difference is that the provision which may be included in any such order now includes the franchise. In this respect, it is the same as the equivalent power in section 29(2) of the 1973 Act.

41.  It is submitted that it is appropriate to leave provision about the conduct of elections to subordinate legislation and that an appropriate level of Parliamentary control is provided over the exercise of the power.

Clause 27(1): Power to make provision for the filling of vacancies in the Assembly's membership
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions:
The Secretary of State.
Statutory instrument.
Draft affirmative (each House of Parliament).
Clause 78(2) of the Bill.
42.  Clause 27 enables the Secretary of State to make provision by order about the filling of vacancies. Under clause 78(2)(b) any such order is subject to the affirmative resolution procedure.

43.  This clause, in effect, re-enacts section 3 of the 1998 Act. It is submitted that the flexibility which the power to make subordinate legislation provides is appropriate, especially as changes are occurring in this area of law. In particular, if the Registration of Political Parties Bill which is currently before the House of Lords is enacted, it may be appropriate to make provision allowing a specified officer of a registered political party to nominate someone to fill a vacancy. The disadvantage of holding a by-election where the system of election involves proportional representation is that the by-election is liable to lose that proportional element.

44.  The powers provide necessary flexibility in respect of vacancies and the affirmative resolution procedure provides an appropriate level of Parliamentary control.

Clause 28(2): Power to add or remove offices to the list of offices disqualified for membership of the Assembly
Power contained in:The Northern Ireland Assembly Disqualification Act 1975 (c. 25).
45.  Under the Northern Ireland Assembly Disqualification Act 1975 the Assembly may amend the list of officers who are disqualified for membership of the Assembly. Clause 28(2) does not amend this power but it does place a restriction on its exercise in the form of a requirement of Secretary of State consent. Since disqualification for membership of the Assembly is a reserved matter under paragraph 7 of schedule 3 to the Bill it is inappropriate that the Assembly should be able to alter the law on disqualification without the need for such consent.

Clause 30(6):  Power to vary the maximum amount of security for costs which may be required by the court on an application under clause 30
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 clauses 17(5) and 102(8) of the Scotland Bill.
46.  Under clause 30(1) anyone claiming that a person purporting to be a member of the Assembly is disqualified or was disqualified when, or at any time since, he was returned as such a member, may apply to the High Court in Northern Ireland for a declaration to that effect. Where a person so applies, clause 30(2)(b) requires that he should give such security for costs, not exceeding £5,000, as the court may direct.

47.  Clause 30(6) confers on the Secretary of State a power by order to alter the maximum amount of the security specified in clause 30(2)(b). By virtue of clause 78(1) any such order is subject to the negative resolution procedure.

48.  It is submitted that it is appropriate that the Secretary of State should have the power to alter the maximum amount of security for costs so that he can take account of changes in the value of money. It is also submitted that the negative resolution procedure sets an appropriate level of Parliamentary control. The amount is only a maximum and the High Court, in determining the amount of security for costs in any particular case, need not set the maximum amount. The equivalent Scotland Bill provisions confer the power on the Scottish Ministers (clause 17(5)) and make it subject to negative resolution in the Scottish Parliament (clause 102(8)).

Clause 40: Power to: make provision as to the form, preparation and publication of Letters Patent signifying Royal Assent to Bills passed by the Assembly (subsection (1)); and give directions as to the making and keeping of Wafer Great Seals of Northern Ireland (subsections (2)-(3))
Power conferred on:
 
Power exercisable by:
Parliamentary procedure:
Other relevant provisions:
 
 
Her Majesty in Council (subsection (1)) and the First and deputy First Minister acting jointly (subsections (2)-(3)).
Order in Council (subsection (1)) and direction (subsections (2)-(3)).
None.
Clauses 36 and 102(8) of the Scotland Bill, schedule 1 to the Irish Free State (Consequential Provisions) Act 1922 (Session 2) (c. 2) and section 3 of the Northern Ireland (Miscellaneous Provisions) Act 1945 (c.12).
49.  Clause 5 of the Bill provides that a Bill of the Assembly shall become an Act of the Assembly upon receipt of Royal Assent signified by Letters Patent under the Great Seal of Northern Ireland and signed by Her Majesty. Clause 40 sets out the formal and technical procedures by which such Assent may be signified and authenticated. It is submitted that no Parliamentary procedure need attach to the making, in this regard, of Orders in Council by Her Majesty and directions by the First and deputy first Minister acting jointly. Any such Orders and directions will be of purely practical and formal significance.

50.  The clause is in part modelled on clause 36 of the Scotland Bill which itself draws on sections 3 and 5 of the Crown Office Act 1877. No Westminster Parliamentary procedure is specified under the Scotland Bill although clause 102(8) does subject Orders in Council made thereunder to negative resolution in the Scottish Parliament. No such provision has been thought necessary under this Bill, however, as this would not be in keeping with previous practice with regard to the Great Seal of Northern Ireland which has hitherto proceeded without the need for Parliamentary scrutiny (under paragraph 2 of schedule 1 to the Irish Free State (Consequential Provisions) Act 1922 (session 2) and section 3 of the Northern Ireland (Miscellaneous Provisions) Act 1945).

Clause 43: Power to prorogue or further prorogue the Assembly
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions:
Her Majesty in Council.
Order in Council.
Draft affirmative (each House of Parliament).
Section 27(6) and (8) of the 1973 Act.
51.  Clause 43 provides for Her Majesty by Order in Council to prorogue the Assembly. Subsection (2) provides that, except where the period of prorogation is a period of four months or less and does not extend a previous period of prorogation, no recommendation shall be made to Her Majesty to make an Order unless a draft has been approved by each House of Parliament.

52.  A similar power with similar safeguards was provided by section 27(6) and (8) of the 1973 Act and it is submitted that the power is an appropriate one. It is also submitted that there is an appropriate level of Parliamentary control because the power can only be exercised, except in limited cases, if each House of Parliament agrees. However, the Committee will want to be aware that the Government now intends to table an amendment to delete this clause from the Bill as it is no longer considered necessary.

Clause 47(7):  Power to increase the amount of money that may be advanced to the Department of Finance and Personnel of Northern Ireland
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions:
The Secretary of State with the consent of the Treasury.
Statutory instrument.
Draft affirmative (House of Commons).
Clause 78(4) of the Bill and clause 64(3) of the Scotland Bill
53.  Under clause 47(1) the Secretary of State may advance money to the Department of Finance and Personnel of Northern Ireland. Clause 47(3) limits the aggregate at any time of the principal of money so advanced to £250 million.

54.  Clause 47(7) enables the Secretary of State by order, with the consent of the Treasury, to substitute for the amount so specified such increased amount as may be specified in the order. Under clause 78(4) an order may not be made under clause 47(7) unless a draft of it has been laid before and approved by resolution of the House of Commons.

55.  It is submitted that it is appropriate that a power should be given to alter the sum in clause 47(3) to take account of inflation. The power in clause 47(7) is modelled on clause 64(3) of the Scotland Bill and only enables the sum specified in clause 47(3) to be increased; a Bill would be required to decrease it. It is also submitted that, since this concerns money, the level of Parliamentary control (that is, prior approval by the House of Commons) is the appropriate one.

Clause 57(2): Power to make supplemental, incidental or consequential provision as a result of the dissolution of the Standing Advisory Commission on Human Rights
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.
56.  Clause 57(2)-(3) is in a standard form and enables the Secretary of State to make, by order, such supplementary, incidental or consequential provision as appears to him to be appropriate for the purpose of ensuring that the abolition of the Standing Advisory Commission on Human Rights under clause 57 is accomplished in a proper and satisfactory manner. In particular, such an order can amend other legislation and make provision for the transfer of rights and liabilities from the Standing Advisory Commission and for payments into the Consolidated Fund or to persons specified in the order.

57.  As is not uncommon in the case of such powers, the order is to be made by statutory instrument and is to be subject to the negative resolution under clause 78(1). It is submitted that this is appropriate.

Clause 59(5): Power to make supplemental, incidental or consequential provision as a result of the establishment of the Equality Commission for Northern Ireland and dissolution of the Fair Employment Commission for Northern Ireland, Equal Opportunities Commission for Northern Ireland, Commission for Racial Equality for Northern Ireland and Northern Ireland Disability Council
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.
58.  Clause 59(5)-(6) contains standard form provisions to enable the Secretary of State to make, by order, such provision supplementary or incidental to, or in consequence of, subsections (1)-(2) of clause 59 as appears to him to be appropriate for the purpose of ensuring that the transfer of functions from, and the abolition of, the bodies listed in subsection (2) is carried out in a smooth and satisfactory manner. In particular, such an order can amend other legislation and make provision for the transfer of rights and liabilities from the dissolved bodies to the new Equality Commission for Northern Ireland and for payments into the Consolidated Fund or to persons specified in the order.

59.  As is not uncommon in the case of such powers, the order is to be made by statutory instrument and is to be subject to the negative resolution under clause 78(1). It is submitted that this is appropriate.

Clause 60(3)(e): Power to designate persons as "public authorities" for the purposes of clause 60
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions:
The Secretary of State.
Statutory instrument.
Draft affirmative (each House of Parliament).
Clause 78(2) of the Bill.
60.  Clause 60(3)(e) enables the Secretary of State to designate as public authorities persons other than those already referred to in subsection (3) for the purpose of imposing upon them the obligation, under subsection (1), to have regard in carrying out their functions to the need to promote equality of opportunity between the groups of persons referred to respectively in subsection (1)(a)-(d).

61.  This imposition of this obligation will carry with it important consequences and for this reason it is appropriate that orders under this provision should be made by statutory instrument subject to the negative resolution procedure as provided for in clause 78(2). It is submitted that this is appropriate.

Clause 67: Power to make orders concerning implementation bodies
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions:
The Secretary of State.
Statutory instrument.
Draft affirmative (each House of Parliament).
Clause 78(2) of the Bill.
62.  This clause gives the Secretary of State Order making power in connection with certain implementation body established for the purpose referred to in paragraph 9(ii) of Strand Two of the Belfast Agreement. It also provides that the Secretary of State may make grants to such bodies out of money provided by Parliament and that, before revoking an order made under this section, the Secretary of State is to have regard to whether the Assembly has made corresponding legislative provision. The Government intends to table amendments to Part VII of the Bill which will include a new clause in place of clause 67. However, although some amendments to the provisions of the clause are to be made (and these are identified below), the main character and purpose of the clause will remain the same.

63.  Strand Two of the Belfast Agreement states that a North-South Ministerial Council is to be established to bring together those with executive responsibilities in Northern Ireland and the Irish Government, to develop consultation, co-operation and action within the island of Ireland on matters of mutual interest within the competence of the two Administrations. Paragraph 8 of Strand Two states that, during the transitional period between elections to the Northern Ireland Assembly and the transfer of power to it, representatives of the Northern Ireland transitional Administration and the Irish Government will undertake a work programme, in consultation with the British Government, with a view to identifying and agreeing by 31 October 1998 areas where co­operation and implementation for mutual benefit will take place. Paragraph 9(ii) requires that, as part of this work programme, they identify and agree at least six matters where co-operation will take place through agreed implementation bodies on a cross-border or all-island level. It is, therefore, these bodies with which clause 67 is concerned. It enables such bodies to have conferred on them in our law the legal status, functions etc. which are needed under the agreements (yet to be concluded) which bring each of them into existence.

64.  Under subsection (1), the Order making power can be exercised about any body which the Secretary of State considers is established for the purpose referred to in paragraph 9(ii) of Strand Two of the Belfast Agreement.

65.  Subsection (2) sets out what provision may be made by Order. An Order may confer on the body the legal capacity of a body corporate. This power would be used where the agreement establishing it expressly or impliedly requires it has such capacity (for the usual purposes to enable it to enter into contracts, employ staff, own property etc).

66.  Under paragraph (b) of the subsection an Order may confer on the body the functions which the Secretary of State considers necessary or expedient for the purpose referred to in paragraph 9(ii) of Strand Two. The intention is that the Secretary of State should be able to provide that the body has the necessary powers, and is subject to the duties, set down in the agreement establishing it.

67.  Since no such body has yet been established and no details about any of them have been agreed, it is not clear what the extent is of the provision in our law which might be needed. The intention is that, broadly speaking, it should be possible to include in an Order made under the clause whatever provision could be made in a 1974 Act Order. The power in paragraph (c) of subsection (2) is accordingly broad. In particular, since the exercise of powers by, or imposition of duties on, the body could affect existing Northern Ireland law, subparagraph (c) allows the Secretary of State to make consequential provision amending or repealing existing Northern Ireland legislation. (Northern Ireland legislation is defined in clause 80(1)). One amendment which the Government intends to table would also enable amendment or repeal of any instrument made under any such legislation.

68.  Under subsection (3) the Secretary of State can make grants to a body about which he makes an Order and where he does so, or proposes to do so, subsection (4) permits provision in the Order to be made corresponding to paragraph 7 of Schedule 8 to the Bill. This would enable the Secretary of State to require that the body keep and provide proper accounts and financial records and that the Comptroller and Auditor General examines, certifies and reports on the accounts each year and lays a copy of them and of his report before Parliament.

69.  Subsection (5) requires the Secretary of State, before revoking an Order made under the clause, to have regard to whether the Assembly has made corresponding provision. This provision was included at a time when it was thought that the Secretary of State would make provision for these implementation bodies of an interim nature which would be superseded by an Assembly Act once it had the powers to legislate conferred by Part II of the Bill. This is no longer intended. Any Order which, in the circumstances, is made by the Secretary of State about one of the first implementation bodies will continue to have effect unless and until revoked, whether by the Assembly or the Secretary of State. The new clause which the Government intends to table will not, therefore, contain this provision.

70.  By virtue of clause 78(2), Orders made under this clause are to be made by statutory instrument subject to the draft affirmative resolution procedure. This accords with the Parliamentary procedure to which 1974 Act Orders in Council are subject.


 
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