Select Committee on Delegated Powers and Deregulation Fifteenth Report



Memorandum by the Northern Ireland Office


This memorandum identifies each provision of the Bill which gives powers for delegated legislation and explains in each case the purpose of the power, the reason why it is to be left to delegated legislation and the nature and justification for and parliamentary procedure applying to any exercise of the delegated powers.


A number of people, referred to colloquially as "the Disappeared", have gone missing in Northern Ireland over the last 25 years. It is believed that they were abducted and killed by proscribed organisations but to date their remains have not been located. This Bill is designed to facilitate the provision of information about the whereabouts of the remains of these victims to an international Commission, established by an Agreement made on 27 April 1999 between the United Kingdom and Irish Governments. References in the Bill to "the Commission" are to the Independent Commission for the Location of Victims' Remains established by that Agreement (clause 1(2)).

The Irish Government has prepared a Bill which makes comparable provision to this Bill and which is currently being considered by the Dail.

Clause 2: The Commission


Subsection (1) provides power for the Secretary of State to make various provision about the Commission by order.

An order under subsection (1) may confer on the Commission the legal capacities of a body corporate (paragraph (a)). It may also confer on the Commission, in such cases, to such extent and with such modifications as the order may specify, any of the privileges and immunities set out in Part 1 of Schedule 1 to the International Organisations Act 1968 (paragraph (b)). Any of the privileges and immunities set out in Parts II, III and V of that Schedule may be conferred on members and servants of the Commission and members of their families who form part of their households (paragraph (c)), again in such cases, to such an extent and with such modifications as the order may specify. Finally, an order under subsection (1) may make provision about the waiver of immunities and privileges (paragraph (d)).

Subsection (2) provides that an order under subsection (1) may make different provision for different cases (including different provision for different persons) and shall be made by statutory instrument subject to the negative resolution procedure.

It is considered that detailed matters of the type described in subsection (1)(a) to (d) are more appropriately dealt with by means of delegated legislation than on the face of the Bill itself. In contrast to the power under section 1(2) of the 1968 Act to apply the privileges and immunities by Order in Council, which is subject to the draft affirmative resolution procedure, the negative resolution procedure has been chosen here. An order in Council under the 1968 Act identifies the Organisation which is to benefit, and this feature arguably justifies the affirmative resolution procedure in that case. Here, however the Bill itself identifies which body is to benefit from the conferral of immunities and privileges, the only issue being just what privileges etc should apply. In these circumstances, it is considered that the negative resolution procedure is sufficient.

The power in clause 2(1) is modelled on the provision contained in section 7(2) of the Northern Ireland Arms Decommissioning Act 1997 (c.7). The negative resolution procedure applies to orders made under that provision (section 7(3)(b)).


Subsection (5) and (6) provide respectively that clause 2 shall come into force, or cease to have effect, on such day as the Secretary of State, after consulting the Minster for Justice, Equality and Law Reform of the Government of Ireland, may by order made by statutory instrument appoint. An order made under subsection (6) may include such transitional provision as appears to the Secretary of State to be expedient.

The commencement power in subsection (5) has been included to allow section 2 to be brought into force to coincide with the commencement of the parallel provision relating to the Commission in the Irish legislation. As is customary in respect of commencement orders, no Parliamentary procedure is provided for an order under subsection (5).

Once the Commission's task is completed, it will no longer be needed and subsection (6) has therefore been included to allow the section to be lapsed, again following consultation with the relevant Irish Minister. Having regard to the limited purpose of such an order no Parliamentary procedure is provided.

Again, subsections (6) and (7) are modelled on provisions contained in the Northern Ireland Arms Decommissioning Act 1997 (section 7(5) and (6) of the 1997 Act).

13 May 1999

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