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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