ANNEX
2
THE NORTHERN IRELAND BILL
SUPPLEMENTARY MEMORANDUM
BY THE NORTHERN IRELAND OFFICE
1. This Supplementary Memorandum,
prepared by the Northern Ireland Office, has been produced pursuant
to the 32nd Select Committee Report of 1997-98 on the Northern
Ireland Bill as brought from the House of Commons (the Bill, print
of 31 July 1998). The aim of this Memorandum is, first, to address
the recommendation of the Select Committee made at paragraph 17
of its Report and, secondly, to give an account of the agreed
and proposed government amendments to the Bill which seek to revise
or confer powers to make delegated legislation.
2. This Memorandum is dated 23 October
1998. Clauses 1-57 of the Northern Ireland Bill were considered
in House of Lords Committee on 19 and 21 October and the remainder
of the Bill is due to be considered in Committee on 26 and 27
October. On the first day of Committee Lord Dubs indicated that
this Memorandum should be produced in time for the Select Committee
to report on the government amendments to the Bill on 28 October
1998 in advance of Report stage (Hansard Vol.593, No.209,
Monday 19 October 1998 at col.1183).
3. The intention had therefore been
to produce and submit this Memorandum to the Select Committee
by 21 October 1998. In the event the demands of Committee stage
and the need to produce and table further amendments in connection
with this delayed the production of this Memorandum and we apologise
to the Select Committee for any inconvenience that this may have
caused.
The Recommendation of the Select
Committee
4. In its Report, the Select Committee
recommended that the negative resolution procedure should be applied
to the powers conferred under clause 70(3) of, and paragraph 6(1)
of schedule 6 to, the Bill. Paragraphs 73 and 96 of the original
Northern Ireland Office Memorandum on the Bill (the original Memorandum,
dated 5 October 1998 and reproduced in Annex 1 to the 32nd Report
of the Select Committee) had indicated that consideration was
being given to this and the decision has now been taken to follow
the Select Committee's recommendation.
5. Accordingly, a government amendment
has been tabled to bring clause 70(3)(a)-(b) of the Bill into
line with clauses 96(3) of, and schedule 7 to, the Scotland Bill
(as amended in Committee, print of 8 October 1998). Orders in
Council conferring powers on, and applying the Judicial Committee
Act 1833 to proceedings of, the Judicial Committee of the Privy
Council in relation to proceedings brought under the Bill will
therefore be subject to annulment in pursuance of a negative resolution
of either House of Parliament (amendment no. 190 on the marshalled
list of amendments to be moved in Committee). It is submitted
that no Parliamentary procedure need attach to rules, made under
clause 70(3)(c), to regulate proceedings of the Judicial Committee.
This is in keeping with the approach adopted in the Scotland Bill.
6. Lord Dubs has further confirmed
to the House that a similar amendment will be brought forward
to bring paragraph 6(1) of schedule 6 to the Bill into line with
paragraph 7 of schedule 2 and schedule 7 to the Scotland Bill
by applying the negative resolution procedure to Orders in Council
extending any of the privileges and immunities of Crown status
to the Northern Ireland Assembly Commission (Hansard Vol.593,
No.209, Monday 19 October 1998 at col.1183).
General points
7. At paragraphs 18-22 below, this
Memorandum touches on amendments that have been made to clause
20 of the Bill. The powers currently conferred under clause 20
were dealt with in paragraphs 27-29 of the original Memorandum.
8. In connection with this, the
Select Committee will also wish to be aware that the government
is considering bringing forward amendments at Report stage to
further amplify clause 20. In part these amendments will follow
clause 54(4)(a) of the Scotland Bill but they will also, in view
of the particular circumstances of Northern Ireland, go further
than this. In short, it is proposed that subsections (1), (2)
and (4) of clause 20 should be expanded to allow the Secretary
of State to act thereunder not only in the interests of the United
Kingdom's international obligations but also in the interests
of defence and national security, for the protection of public
safety and public order and in order to preserve the single market
in goods and services within the United Kingdom (which last objective
is secured by different means in the Scotland Bill). By attaching
to the existing structure of clause 20, the additional powers
which will be conferred on the Secretary of State by virtue of
these amendments will be subject to the negative resolution procedure
and a reasons requirement. It is thought that this level of Parliamentary
scrutiny should be appropriate for the reasons already accepted
in relation to clause 20 as it now stands.
9. It was indicated in paragraph
52 of the original Memorandum that consideration was being given
to the need for clause 43 of the Bill which conferred on Her Majesty
power to prorogue the Assembly. Following on from this, the Select
Committee may wish to note that this clause was subsequently negatived
at the motion of Lord Dubs and did not stand part of the Bill
(Hansard Vol.593, No.211, Wednesday 21 October 1998 at
col.1444).
10. Paragraphs 81-83 of the original
Memorandum addressed the powers conferred under clause 72. Detailed
investigations into the extent to which it will be necessary after
devolution to transfer statutory functions between various Northern
Ireland and United Kingdom bodies, particularly in connection
with the regulation of social security law and the Northern Ireland
fisheries, have since revealed serious deficiencies in clause
72. The Select Committee will therefore wish to know that the
government intends to bring forward further amendments to generalise
clause 72 at Report stage. It is not however intended that the
draft affirmative procedure should be departed from in connection
with any such amendments.
11. A number of government amendments
were tabled on 21 and 22 October 1998 in connection with clauses
73-74 and social security, child support and pensions. In particular
a new clause 74A is proposed under the heading "Industrial
Injuries Advisory Council". This would amend section 149
of the Social Security Administration (Northern Ireland) Act 1992
so as to require the Department to consult with the Industrial
Injuries Advisory Council before making certain regulations. These
amendments seek to supplement a pre-existing delegated power however
and are not covered in this Memorandum.
12. This Memorandum identifies ten
areas in which the government is seeking to revise or extend the
delegation of legislative powers under the Bill. In each case
it seeks to clarify whether the government amendment in question
has been agreed to or simply tabled. Where possible, reference
is made to the numbering of amendments used on the first and second
marshalled lists of amendments to be moved in Committee. In the
heading to each of the following ten sections, reference is made,
where appropriate, first to existing clauses and then to new clauses.
Clause 6, new subsections (5)-(6):
Power to specify functions which are to be treated as being or
not being exercisable in or as regards Northern Ireland
Power conferred on: Her
Majesty in Council.
Power exercisable by: Order
in Council.
Parliamentary procedure: Draft
affirmative (each House of Parliament).
Other relevant provisions: Clause
29(3) of, and schedule 7 to, the Scotland Bill.
Status of amendment: Amendment
no. 17 agreed to and amendments nos. 210 and 244 tabled (Hansard
Vol.593, No.209, Monday 19 October 1998 at col.1222).
13. These new subsections follow
the approach taken in clause 29(3) of the Scotland Bill and will
allow the Assembly to legislate in certain circumstances at and
slightly beyond the bounds of its territorial jurisdiction. The
main concern here is the ability of the Assembly to regulate sea
fishing within the Northern Ireland zone (as defined in amendment
no. 210 to clause 80(1)) and to regulate the activities of Northern
Ireland fishing boats (as defined in amendment no. 244 to schedule
2) elsewhere within United Kingdom waters.
14. Clause 6(2)(a) prevents the
Assembly from passing laws that would confer or remove functions
exercisable otherwise than in or as regards Northern Ireland.
On its face this would preclude the Assembly from conferring powers
or duties on executive authorities to enable them to ensure that
Northern Ireland boats licensed and registered under Northern
Ireland law are keeping to their license conditions wherever they
are in United Kingdom waters. The Assembly should not face any
such obstacle however and under the new subsections to clause
6 Her Majesty will be able to ensure that it does not by specifying
functions which are to be treated as being, or as not being, exercisable
in or as regards Northern Ireland for the purposes of clause 6(2)(a).
There may also be circumstances unrelated to sea fishing in which
the Assembly's ability to authorise activities overseas might
need to be made clear and these provisions will allow this to
take place.
15. Orders in Council made under
this new power will be subject to draft affirmative resolution
in both Houses of Parliament and it is submitted that this level
of scrutiny is appropriate. The same approach has been adopted
under the Scotland Bill.
Clause 15(3) and new clause 14A (Ministerial
Offices): Power to provide for there to be more than ten Northern
Ireland Ministerial offices
Power conferred on: The
Secretary of State.
Power exercisable by: Statutory
instrument.
Parliamentary procedure: Negative
resolution (either House of Parliament).
Other relevant provisions: Clause
78(1) of the Bill.
Status of amendments: Amendments
nos. 36-37 agreed to and amendment no. 202 tabled (Hansard
Vol.593, No.209, Monday 19 October 1998 at col.1247).
16. Paragraphs 17-20 of the original
Memorandum explained the Secretary of State's role in determining
the total number of Northern Ireland Ministers under clause 15(3).
Subsections (1)-(3) of clause 15 have now been replaced however
(by amendment no. 37) and a new clause entitled "Ministerial
offices" has been inserted after clause 14 in place of, inter
alia, clause 15(3) (by amendment no. 36).
17. Under subsection (4) of this
new clause the Secretary of State retains her power to determine
the maximum number of Northern Ireland Ministerial Offices. The
thinking here remains the same and the negative resolution procedure
will be applied by way of an amendment to clause 78(1) accordingly.
It is submitted that the essential position has not changed in
this regard and that the level of scrutiny proposed remains appropriate.
New clause 19A (Excepted and reserved
matters): Power to revoke subordinate legislation dealing with
excepted or reserved matters
Power conferred on: The
Secretary of State.
Power exercisable by: Statutory
instrument.
Parliamentary procedure: Negative
resolution (either House of Parliament).
Other relevant provisions: Clauses
20(4) and 78(1) of the Bill, clause 54(4)(b) of, and schedule
7 to, the Scotland Bill.
Status of amendments: Amendments
nos. 57 and 61-62 agreed to and amendment no. 203 tabled (Hansard
Vol.593, No.209, Monday 19 October 1998 at col.1287).
18. These amendments combine to
create a new power which has much the same aim as clause 54(4)(b)
of the Scotland Bill. This power stands as a reworking and extension
of the now deleted paragraph (b) of clause 20(4). In short, the
power allows the Secretary of State by order to revoke any Northern
Ireland subordinate legislation which contains a provision dealing
with an excepted or reserved matter. This covers subordinate legislation
made under Acts of Parliament as well as Acts of the Assembly
and the power is intended to stand as a fall-back means of confining
the Northern Ireland Ministers and departments to the transferred
field.
19. Clause 50 of the Scotland Bill
provides that the Scottish Executive must stay within "devolved
competence" and in relation to the making of subordinate
legislation this prevents the enactment of devolved subordinate
provisions that would have been outside the legislative competence
of the Scottish Parliament had they been contained in an Act of
the Scottish Parliament. There is no direct analogue of "devolved
competence" in the Northern Ireland Bill however because
the Secretary of State's role in consenting to particular types
of provision, under part II of the Bill, means that it would be
impossible to establish in advance whether or not the Assembly
could have enacted certain provisions.
20. For the most part none of this
is particularly problematic. As a matter of principle the Parliament
of the United Kingdom can empower the Northern Ireland Ministers
and departments to make whatever subordinate legislation it sees
fit regardless of whether it deals with excepted or reserved matters
and clause 77(4)(b) of the Bill confirms this. Moreover, so far
as excepted matters are concerned, subordinate legislation made
under Acts of the Assembly can only contain provisions which the
Assembly would have been competent to enact because the Assembly
cannot empower the Northern Ireland Ministers and departments
to enact anything which it could not itself enact.
21. The possibility nevertheless
remains that the Northern Ireland Ministers or departments might
pass legislation, particularly in the reserved field, that the
Secretary of State would not have consented to had it been presented
to her as an Assembly Bill. A requirement that the Secretary of
State should vet or consent to any or all Northern Ireland subordinate
legislation would be unduly restrictive, but there is sense in
her being able, in certain circumstances, retrospectively to determine
that she would not have consented to a particular instrument and
that it should therefore fall by the wayside. Accordingly, the
power in this new clause stands as a back-up means of policing
the reserved field and restricting the Northern Ireland executive
to the transferred field: it is to clauses 6-7, what clause 20(4)(a)
is to clause 12(5).
22. This new provision therefore
empowers the Secretary of State by order to revoke Northern Ireland
subordinate legislation dealing with excepted or reserved matters.
As with orders revoking subordinate legislation under clause 20(4)(a),
these orders will be subject to the negative resolution procedure
and a reasons requirement. Retrospective provision will be possible
in order to allow for the unstitching of past acts, that may have
relied on the revoked instrument, in a way that is not detrimental
to third parties. It is therefore submitted that this power is
subject to appropriate controls.
New clause 20A (Quotas for purposes
of international or Community obligations): Power to apportion
to the Northern Ireland Ministers and departments responsibility
for an appropriate share of the United Kingdom's quantitative
international or Community law obligations
Power conferred on: Ministers
of the Crown.
Power exercisable by: Statutory
instrument.
Parliamentary procedure: Negative
resolution (either House of Parliament).
Other relevant provisions: Clause
78(1) of the Bill, sections 106, 108 and 154 of the Government
of Wales Act 1998 (c. 38).
Status of amendments: Amendment
no. 63 agreed to and amendment no. 204 tabled (Hansard
Vol.593, No.209, Monday 19 October 1998 at col.1290).
23. This new clause is modelled
on sections 106 and 108 of the Government of Wales Act 1998. In
short, it will allow Ministers of the Crown to make orders detailing
the extent to which the United Kingdom's international obligations
or obligations under Community law fall to be complied with at
the devolved Northern Ireland level (i.e. by Northern Ireland
Ministers and departments) where these obligations set quantitative
targets. An order under this provision might, for example, task
the Department of Agriculture for Northern Ireland with ensuring
a 10% reduction in a particular type of pollution within Northern
Ireland as an appropriate contribution towards United Kingdom
wide efforts to achieve a 20% reduction thereof in pursuance of
a treaty or Community law.
24. Orders made under this power
will be made by way of statutory instrument and may specify the
result to be achieved and the time within which this must be done.
They can only be made following prior consultation with the Northern
Ireland Minister or department concerned and are to be subject
to the negative resolution procedure. This level of scrutiny applies
in equivalent circumstances under section 154 of the Government
of Wales Act 1998 and it is submitted that it is also appropriate
here.
Clause 24(4) and new clause 24A (Extraordinary
elections): Power to direct the date of the poll and the dissolution
of the Assembly in connection with extraordinary elections triggered
by other events
Power conferred on: Her
Majesty in Council.
Power exercisable by: Order
in Council.
Parliamentary procedure: None.
Other relevant provisions: Section
27(5) of the 1973 Act.
Status of amendment: Amendments
nos. 89-90 agreed to (Hansard
Vol.593, No.209, Monday 19 October 1998 at col.1297).
25. Clause 24(4) of the Bill followed
section 27(5) of the Northern Ireland Constitution Act 1973 (the
1973 Act) in empowering Her Majesty, by order in Council, to fix
the date for elections to the Assembly in certain circumstances.
Paragraph 36 of the original Memorandum indicated that the policy
in connection with clause 24(4) was under review however and that
the intention, reflecting consultations with the Northern Ireland
parties, was to table amendments leaving the exercise of this
power to the Assembly rather than Her Majesty. This brings the
Bill more closely into line with the Scotland Bill.
26. Amendments nos. 89-90 gave effect
to this change in policy be deleting subsections (4) and (5) of
clause 24 and inserting a new clause after clause 24 under the
heading "Extraordinary elections". This new clause allows
the Assembly to pass a resolution for its own dissolution and
then empowers the Secretary of State to propose a date for the
election of the next Assembly (subsection (1)). The Secretary
of State may also propose a date for the election of the next
Assembly where a new Assembly has been unable to elect a First
and deputy first Minister under clause 14 (subsection (3)). Subsection
(4) of this new clause allows Her Majesty, by Order in Council,
to implement such a proposal by dissolving the Assembly and determining
the date of the poll for the election of the next Assembly.
27. No Parliamentary procedure attaches
to Orders in Council made under this provision for the simple
reason that they will only be made where the Assembly has already
resolved to dissolve itself or proved unable to elect a First
and deputy first Minister. There is therefore no discretion involved
in the making of such Orders: in either of these extraordinary
circumstances, a fresh election will have to be held and it is
submitted that there is therefore no need for Parliament to scrutinise
an Order which merely sets in train an inevitable consequence.
Clause 67 and new clause 43D (Implementation
bodies): Power to make orders concerning implementation bodies
Power conferred on: The
Secretary of State.
Power exercisable by: Statutory
instrument.
Parliamentary procedure: Draft
affirmative (each House of Parliament).
Other relevant provisions: Clause
78(2) of the Bill.
Status of amendment: Amendment
no. 114 agreed to and amendment no. 205 tabled (Hansard
Vol.593, No.211, Wednesday 21 October 1998 at col.1459).
28. Amendments nos. 114 and 205,
coupled with the notified intention of Lord Dubs to oppose the
Question that clause 67 stand part of the Bill, aim to adopt a
different approach with regard to the implementation bodies that
will be set up for the purposes referred to in paragraph 9(ii)
of Strand Two of the Belfast Agreement. Paragraphs 62-70 of the
original Memorandum dealt with this aspect of the Belfast Agreement
and both the underlying policy and the need for the Secretary
of State to be able to clothe the implementation bodies with legal
status and functions remains the same.
29. Accordingly, the new clause
entitled "Implementation bodies" is substantially similar
to clause 67 in terms of the powers it confers on the Secretary
of State. The new clause does however confer on the Secretary
of State further powers: to confer on Northern Ireland departments
power to make grants to implementation bodies out of money appropriated
by Act of the Assembly; to make provision as to the accounting
and auditing arrangements which are to apply in relation to implementation
bodies; and to amend or repeal provision made under, as well as
contained in, Northern Ireland legislation.
30. The draft affirmative procedure
in both Houses of Parliament will be retained in respect of orders
made by the Secretary of State by statutory instrument under this
revised power. It is submitted that this is the appropriate course
to take.
New clause 68A (Legislative power
to remedy ultra vires acts): Power to remedy ultra vires acts
Power conferred on: The
Secretary of State.
Power exercisable by: Statutory
instrument.
Parliamentary procedure: Draft
affirmative (each House of Parliament).
Other relevant provisions: Clause
78(2) of the Bill and clauses 94 and 106 of, and schedule 7 to,
the Scotland Bill.
Status of amendment: Amendments
nos. 182 and 205 tabled.
31. This proposed new clause is
modelled closely on clause 94 of the Scotland Bill with very much
the same purpose in mind. The Secretary of State will be empowered
under the proposed provision to remedy the effects of unlawful
Acts of the Assembly and acts of the Northern Ireland Ministers
and departments. Such remedial action will take the form of an
order which may make such provision as the Secretary of State
considers necessary or expedient, including retrospective provision
and provision which amends or repeals provisions made by or under
Northern Ireland legislation (as defined in clause 80(1)).
32. Where there is no argument as
to whether a defect has occurred which has rendered a legislative
or executive act invalid this power will allow the Secretary of
State to remedy the situation without the need for litigation
and in such a way as to protect the interests of those who have
properly proceeded on the assumption that there has been no irregularity.
As a matter of general principle however, every governmental instrument
or act is to be taken to be lawful until a court of competent
jurisdiction declares otherwise. This power is not intended to
throw any doubt on this fundamental principle and the government
does not intend that it should be used as an extra-judicial means
of determining questions of law or achieving other aims unilaterally.
Accordingly, where a claim of invalidity is contentious this power
will in practice be exercisable following the determination of
a court of competent jurisdiction, as a complement to clause 69,
in order to enable the Secretary of State to mitigate the harsher
consequences of any findings of ultra vires.
33. In the light of the extensive
nature of this power, the delicate position it must take up with
regard to the separation of powers and the need to allow for retrospection,
it is submitted that the draft affirmative resolution procedure
in both Houses of Parliament is appropriate.
Clause 71(1)(b) and new clause 71A
(Provision dealing with certain reserved matters): Power to make
provision dealing with certain reserved matters
Power conferred on: Her
Majesty in Council.
Power exercisable by: Order
in Council.
Parliamentary procedure: Draft
affirmative (each House of Parliament) (subject to an urgency
procedure).
Other relevant provisions: Section
38(1) of the 1973 Act.
Status of amendments: Amendments
to clauses 71, 80 and schedule 13 tabled 22 October 1998.
34. Paragraphs 76-78 of the original
Memorandum dealt with the power conferred on Her Majesty by clause
71(1)(b) to make provision by Order in Council with respect to
reserved matters. Following further consultations with the parties
and further thought on the part of the government, it has been
decided to slim down this power. Accordingly, amendments have
been brought forward to delete clause 71(1)(b) and replace it
with a new clause entitled "Provision dealing with certain
reserved matters".
35. Under this new clause Her Majesty
may by Order in Council make provision dealing with any matter
falling within a description specified in paragraphs 8-15 of schedule
3. This will include: provision having retrospective effect; provision
for the delegation of functions provision amending or repealing
any provision made by or under any Act of Parliament or Northern
Ireland legislation (subsection (1)); and such ancillary, consequential,
incidental, supplemental or transitional provision as appears
to Her Majesty necessary or expedient (subsection (2)).
36. As under clause 71(1)(b) (and
section 38(1) of the 1973 Act) the draft affirmative resolution
procedure in both Houses of Parliament is applied, subject to
an urgency procedure. Moreover, no draft Order may be laid before
Parliament until both Houses of Parliament and the Assembly have
had an adequate opportunity to consider a proposed draft Order
and to make representations thereon (subsection (4)). Any draft
Order laid before Parliament must moreover be accompanied by a
statement detailing the comments made during this consultation
period and any changes that have been made to the proposed draft
Order in the light thereof (subsections (5)-(6)). It is hoped
that this revision achieves even better scrutiny of the exercise
of this narrower power than was previously the case.
New clauses to go after clause 74
and new schedule to go after schedule 11 on the Tribunal to consider
National Security Certificates etc: Powers to make rules for proceedings
of the Tribunal
Power conferred on: The
Lord Chancellor.
Power exercisable by: Statutory
instrument.
Parliamentary procedure: Draft
affirmative (each House of Parliament).
Other relevant provisions: Clause
78 (new subsection (6)).
Status of amendments: Amendments
to clauses 78 and 80 and schedule 14 tabled 22 October 1998.
37. Following the judgment of the
European Court of Human Rights in the recent case of Tinnelly
and McElduff v UK, this series of amendments has been
tabled in order to establish a Tribunal (the Tribunal) to hear
appeals against national security certificates issued by the Secretary
of State under the 1973 Act and the Bill. These amendments were
prefaced by Lord Dubs on moving that the Bill be read a second
time (Hansard Vol.593, No.201, Monday 5 October 1998 at
col.173).
38. For present purposes the key
provisions here are section 23(4) of the 1973 Act and clause 80(5)
of the Bill. In short, certain discriminatory conduct which would
otherwise be unlawful under the 1973 Act and the Bill is permissible
in the interests of national security or for the purpose of protecting
public safety or public order and the Secretary of State may issue
conclusive certificates to the effect that these interests are
in play in a particular case. Under article 6 of the European
Convention on Human Rights individuals are entitled to a fair
hearing in the determination of their civil rights however and
a fair means of challenging national security certificates must
therefore be found that nevertheless protects any sensitive interests
and information.
39. Accordingly, the government
is seeking to establish the Tribunal to adjudicate fairly on the
validity of national security certificates. In this regard, the
Tribunal will have to proceed in accordance with a prescribed
set of rules and the power to make these rules is to be conferred
on the Lord Chancellor. In this way, the Lord Chancellor will
be empowered to make rules for: regulating the exercise of rights
of appeal to the Tribunal (second new clause (the Tribunal), subsection
(2)(a)); prescribing the practice, procedure and evidential rules
of the Tribunal (second new clause (the Tribunal), subsection
(2)(b)); other incidental matters (second new clause (the Tribunal),
subsection (2)(c)); and regulating and prescribing the procedure
to be followed on applications to the Tribunal for leave to appeal
to the Court of Appeal in Northern Ireland (third new clause (appeals
from the Tribunal), subsection (3)).
40. Subsections (3)-(5) of the second
new clause headed "the Tribunal" detail the extent to
which such rules may provide for the legal representation of the
parties and the protection of sensitive information including
where necessary by means of the exclusion of parties. Subsection
(6) requires that, in formulating a set of rules, the Lord Chancellor
should endeavour to balance the need for openness against the
public interest in confidentiality.
41. In terms of Parliamentary scrutiny,
it is proposed to add a new subsection (6) to clause 78 so that
any rules shall be made under these provisions by way of statutory
instrument and subject to the negative resolution procedure in
both Houses of Parliament. It is submitted that this level of
Parliamentary scrutiny is appropriate in order to ensure that
the rules made are properly formulated to meet the twin requirements
of openness and national security.
Clause 80, new subsections (6)-(7):
Power to make provision for determining boundaries at sea for
certain purposes
Power conferred on: Her
Majesty in Council.
Power exercisable by: Order
in Council.
Parliamentary procedure: Draft
affirmative (each House of Parliament).
Other relevant provisions: Clause
118(2) of, and schedule 7 to, the Scotland Bill.
Status of amendment: Amendment
no. 214 tabled.
42. Under clause 6(2)(a) the Assembly
may not pass laws that would form part of the law of a country
or territory other than Northern Ireland. "Northern Ireland"
is itself defined in clause 80(1) of the Bill to include so much
of the internal waters and territorial sea of the United Kingdom
as are adjacent to Northern Ireland.
43. The proposed new subsections
(6)-(7) to be added to clause 80 will allow the extent of these
waters to be determined by Order in Council for the purposes specified.
The extent of the territorial sea of the United Kingdom is of
course determined in accordance with international law but these
amendments will allow for the internal division thereof, chiefly
as between Northern Ireland and Scotland. This new power will
therefore complement the equivalent power contained in clause
118(2) of the Scotland Bill and new subsections (5)-(6) of clause
6 (see paragraphs 13-15 above).
44. Orders in Council made under
this provision will be subject to draft affirmative resolution
in both Houses of Parliament and it is submitted that this is
appropriate.
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