Clause
70(3): Powers to: confer powers on the Judicial Committee of the
Privy Council in relation to devolution issue proceedings (paragraph
(a)); apply the Judicial Committee Act 1833 (c. 41) in relation
to devolution issue proceedings (paragraph (b)); and make rules
for regulating procedure for the Judicial Committee of the Privy
Council in relation to devolution issue proceedings (paragraph
(c))
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions: | Her Majesty in Council.
Order in Council.
None.
Clause 94(3) of the Scotland Bill. |
71. This clause provides for the
membership of the Judicial Committee of the Privy Council (JCPC)
in proceedings under the Northern Ireland Bill and enables certain
powers to be conferred on the JCPC in relation to such proceedings.
It also provides that decisions of the JCPC in these proceedings
will be binding on all other courts.
72. Clause 70(3) provides that Her
Majesty may by Order in Council, in relation to proceedings under
the Bill: (a) confer such powers on the JCPC as she considers
necessary or expedient; (b) apply the Judicial Committee Act 1833
with exceptions or modifications; and (c) make rules for regulating
procedure before the JCPC.
73. The equivalent Scotland Bill
provisions are contained in clause 94(3) and Orders under paragraph
(a) and (b) thereof are subject to the negative resolution procedure
pursuant to clause 102(6). These provisions for Parliamentary
control have not thus far been carried over to the Northern Ireland
Bill but consideration is being given as to whether or not this
would be appropriate.
Clause 71(1)(a): Power to make provision
with respect to elections
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 38(1) of the 1973 Act, paragraph 2 of schedule 1 to the European
Parliamentary Elections Act 1978 (c. 10), section 11 of the Government
of Wales Act 1911 and clauses 11 and 102(1) and (4) of the Scotland
Bill. |
74. Clause 71(1)(a) of the Bill
follows section 38(1) of the 1973 Act in conferring on Her Majesty
power to make provision by Order in Council with respect to elections
to, and boundaries of, district councils in Northern Ireland.
This power is subject to the draft affirmative procedure under
clause 71(4).
75. This power does not extend to
altering the franchise which is set out in sections 1-2 of the
Elected Authorities (Northern Ireland) Act 1989 (c. 3). It is
common practice for the regulation of the conduct of elections
to be left to subordinate legislation. Not only is this true of
elections to the Assembly itself (see clauses 26(4) and (6)) it
is also true of European Parliamentary elections (paragraph 2
of schedule 1 to the European Parliamentary Elections Act 1978)
and elections to the Welsh Assembly (section 11 of the Government
of Wales Act 1911). Clauses 11 and 102 of the Scotland Bill similarly
confer legislative powers on the Secretary of State to make provision
in connection with the conduct of elections subject to the affirmative
resolution procedure. The draft affirmative procedure is generally
considered appropriate in this context and clause 71(1)(a) conforms
with this practice accordingly.
Clause 71(1)(b): Power to make provision
with respect to reserved matters
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions: | Her Majesty in Council.
Order in Council.
Draft affirmative (each House of Parliament) (subject to an urgency procedure).
Section 38(1) of the 1973 Act. |
76. Clause 71(1)(b) of the Northern
Ireland Bill reproduces the effect of section 38(1)(b) in conferring
power on Her Majesty to make provision by order in Council with
respect to reserved matters as specified in schedule 3 to the
Bill. Clause 71(4) applies the draft affirmative procedure to
such Orders and there is an urgency procedure under clause 71(5)
which allows such Orders to be made and to lapse if not approved
by a subsequent resolution of each House of Parliament within
40 days. Clauses 71(8)-(9) and 80(1) provide that Orders in Council
made under this clause shall be "Northern Ireland legislation"
(Northern Ireland primary legislation printed in the Northern
Ireland Statutes Revised) in the same way as Orders in Council
made under section 38(1)(b) of the 1973 Act are treated as "Northern
Ireland legislation".
77. The reserved matters set out
in schedule 3 to the Bill are those matters which might ultimately
be devolved to Northern Ireland. At present these matters, such
as the criminal law and policing, remain a United Kingdom concern.
It follows that provision will sometimes need to be made in this
area, where for example, new reserved matters provision is needed
in Northern Ireland but where the alternative means of legislating
for them are not available.
78. The power conferred under section
38(1)(b) of the 1973 Act is to be retained accordingly and the
draft affirmative procedure is considered appropriate in this
regard. The clause 71(5) urgency procedure is necessary in case
legislation is needed when Parliament is not sitting, for example,
to respond to a particular threat or set of circumstances with
further criminal provisions.
Clause 71(2): Power to amend
the law of the United Kingdom in consequence of any provision
made by or under Northern Ireland legislation and certain Acts
of Parliament
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 38(2) of the 1973 Act. |
79. Clause 71(2) confers broadly
the same Henry VIII power as is conferred under section 38(2)
of the 1973 Act. The power allows Her Majesty by Order in Council
to amend the law in any part of the United Kingdom as Her Majesty
considers necessary or expedient in consequence of any provision
made by or under Northern Ireland legislation (as defined in clause
80(1)) or an Act of Parliament made before the Bill is enacted
which extends to Northern Ireland.
80. In this regard changes to the
law in Northern Ireland may necessitate adaptations of the law
elsewhere in the United Kingdom in order to ensure that no loopholes
or gaps arise between the various jurisdictions. It is submitted
that the draft affirmative procedure is appropriate in this context.
Clause 72: Power to amend the law
of the United Kingdom in consequence of or for giving effect to
the Bill or any Order made under clause 4
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 39 of the 1973 Act, section 151 of the Government of Wales Act 1998 and clauses 96 and 102 of the Scotland Bill. |
81. Clause 72 enables Her Majesty
by Order in Council to make such provision as appears necessary
or expedient in consequence of, or for giving full effect to,
this Act or any Order under clause 4. This extends to the amendment
of any United Kingdom law.
82. Subsection (5) provides that
an Order shall not be made unless it has been laid before and
approved by resolution of each House of Parliament.
83. It is submitted that it is appropriate
for there to be a power to make expedient or consequent provisions
to give effect to the Bill or an Order under section 4 by subordinate
legislation. This may involve, for example, allocating functions
to particular Ministers or departments. It is also submitted that
the level of Parliamentary control is appropriate as the Order
must be approved by each House of Parliament. A similar power,
also subject to the draft affirmative procedure was conferred
under 39 of the 1973 Act. Similar powers are contained in section
151 of the Government of Wales Act 1998 and clause 96 of the Scotland
Bill (subject, so far as the Scotland Bill is concerned, to negative
resolution).
Clause 73(3): Power to make regulations
for giving effect to arrangements for co-ordinating the operation
of social security, child support and pension schemes
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions:
| The Secretary of State.
Statutory instrument.
Negative resolution (House of Commons).
Clause 78(3) of the Bill, sections 177(4) and 178(3) of the Social Security
Administration Act 1992 (c. 5), section 56(3) of the Child Support
Act 1991 (c. 48) and section 167 of the Pensions Schemes Act 1993
(c. 48). |
84. Clause 73 places a duty on the
Secretary of State and the Northern Ireland Minister with responsibility
for social security to consult with a view to making arrangements
to co-ordinate social security, child support and pension legislation
so as to arrive at single systems covering social security, child
support and pensions across the United Kingdom.
85. Clause 73(3) allows the Secretary
of State to make regulations adapting legislation and subordinate
legislation in force in Great Britain. These regulations may also
provide that Northern Ireland acts, omissions and events have
a corresponding effect in Great Britain and determine which right
applies in cases where rights have accrued in both countries.
86. Clause 73(3) combines and extends:
sections 177(4) and 178(3) of the Social Security Administration
Act 1992 which themselves carry forward long-standing provisions
of a similar nature and allow for regulations to give effect to
the co-ordination of social security matters across the United
Kingdom; section 56(3) of the Child Support Act 1991 which provides
for regulations to give effect to a co-ordinated approach to child
support matters; and section 167 of the Pensions Schemes Act 1993
which is of similar effect in the pensions field.
87. This regulation making power
is necessary because these clauses are likely to require amendments
to a large amount of complex secondary legislation. In addition
the co-ordination of the Northern Ireland and Great Britain systems
will be an on-going concern that will require continuous re-adjustments
on a flexible basis. In this way clause 73(3) will allow Northern
Ireland and Great Britain to enjoy closely co-ordinated social
security, child support and pension schemes which are amenable
to the free movement of persons between both jurisdictions without
there being a risk of loss of entitlements or gaining any unintended
rights to duplicate payments.
88. It is submitted that, since
these regulations will need to be made on a flexible and not infrequent
basis and will inevitably raise financial considerations, the
level of Parliamentary control proposed, namely, negative resolution
by the House of Commons is the appropriate one.
Clause 73(4): Power to make regulations
for giving effect to arrangements for co-ordinating the operation
of social security, child support and pension schemes
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions:
| The Northern Ireland Minister having responsibility for social security.
Regulations.
Negative resolution (Assembly).
Clause 78(5) of the Bill and section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33). |
89. Clause 73(4) gives the same
regulation making powers to the Northern Ireland Minister concerned
as clause 73(3) gives to the Secretary of State. It further combines
and builds on the Northern Ireland provisions which correspond
to those referred to above.
90. Corresponding considerations
and purposes are in play here and the level of Assembly control
matches the level of Parliamentary control. It is submitted that
this is the appropriate approach to take.
Clause 83(3): Power to bring
the provisions of the Bill (other than Parts II and III) into
force
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions: | The Secretary of State.
Statutory instrument.
None.
None. |
91. Clause 83(3) provide for provisions
of the Act, other than those which pursuant to subsection (2)
come into force on Royal Assent, to come into force by order.
As is customary such commencement orders are not subject to any
Parliamentary procedure.
Schedule 1, paragraph 1: Power to
direct the holding of a poll for the purposes of clause 1 (as
to whether Northern Ireland should cease to be a part of the United
Kingdom)
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. |
92. Under clause 1(1) it is declared
that Northern Ireland in its entirety remains part of the United
Kingdom and that it shall not cease to be so without the consent
of a majority of the people of Northern Ireland voting in a poll
for those purposes in accordance with Schedule 1.
93. That Schedule enables the Secretary
of State to provide by order for the holding of such a poll. It
enables him to set the date for the poll (paragraph 1); the franchise
(paragraph 4(1)(a)); the question or questions to be asked (paragraph
4(1)(b)); and such provision about the poll as the Secretary of
State thinks expedient (paragraph 4(2)).
94. This power, in effect, replicates
the power in Schedule 1 to the 1973 Act. Like that power, no order
can be made unless a draft of it has been laid before, and approved
by, each House of Parliament (clause 78(2)).
95. It is submitted that it is appropriate
for provision about the poll to be left to subordinate legislation
and that the level of Parliamentary control (the affirmative resolution
procedure) is the appropriate one for such an order.
Schedule 6, paragraph 6: Power to
provide for the Assembly Commission to be treated to any extent
as a Crown body for the purposes of any enactment
Power conferred on:
Power exercisable by:
Parliamentary procedure:
Other relevant provisions: | Her Majesty in Council.
Order in Council.
None.
Paragraph 7 of schedule 2 to and clause 102(6) of the Scotland Bill. |
96. This provision enables an Order
in Council to provide that the Northern Ireland Assembly Commission
established under clause 32 should be treated as a Crown body
for the purposes of any enactment. Although the power is not subject
to any Parliamentary procedure the equivalent Scotland Bill provision,
paragraph 7 of schedule 2, is subject to the negative resolution
procedure under clause 102(6). Further consideration is therefore
being given as to whether or not the Northern Ireland Bill should
follow suit in this regard.
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