NORTHERN IRELAND BILL
Memorandum by the Northern Ireland Office
Introduction and scope
1. This memorandum identifies each provision
of the Northern Ireland Bill which gives powers for delegated
legislation. It 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 any parliamentary procedures
Purpose of the Bill
2. The Bill is intended to give effect to the
"Failsafe clause" in the joint statement on the way
forward in Northern Ireland which was made on 2 July 1999 by the
British and Irish Governments (the "Joint Statement").
The statement is set out in Schedule 2 to the Bill. The Bill accordingly
provides for the suspension of institutions in accordance with
the Joint Statement, the restoration of devolved government, and
arrangements during the suspension period.
CLAUSE 1(2) - DUTY TO MAKE A SUSPENSION ORDER
3. Where section 1 applies, the Secretary of
State is required to make a suspension order under subsection
(2). The circumstances in which the duty to make a suspension
order is triggered are set out in subsection (1).
4. Paragraphs (a) to (d) of subsection (2) set
out the provision to be made in a suspension order -
(a) preventing the passing of any Act by the Assembly
during the suspension period, and limiting its ability to meet;
(b) preventing any person from holding office or
being elected, nominated or appointed as a Minister or junior
Minister, or as a chairman or deputy chairman of a statutory committee;
(c) as to the non-exercise of various functions conferred
by the Northern Ireland Act 1998 in relation to the North-South
Ministerial Council, the British-Irish Council and the British-Irish
Intergovernmental Conference; and
(d) as to the non-exercise of the power to confer
functions on implementation bodies under section 55(2)(b) of that
5. A suspension order may also make such consequential,
incidental and supplementary modifications of enactments as appear
to the Secretary of State to be necessary or expedient: subsection
(5)(a). "Enactment" is defined broadly in clause 6(2).
6. The other effects of a suspension order, including
the arrangements for the discharge of legislative and executive
functions, are set out in Schedule 1.
7. A suspension order is to be subject to the
negative resolution procedure: subsection (5)(b). Under the terms
of the Joint Statement, the suspension of devolved government
is intended to be automatic (hence the Secretary of State's obligation
to act) and immediate. These features are politically of great
importance. In the circumstances, although the order would have
wide-ranging effects, it appears wrong to subject the making of
the order to prior Parliamentary approval.
CLAUSE 2(1) - POWER TO APPOINT BY ORDER A DAY ON
WHICH THE SUSPENSION PERIOD WILL END.
8. Clause 2(1) confers power on the Secretary
of State to appoint by order a day on which the suspension period
will end. The period will have started with the making of the
suspension order under section 1(2).
9. In deciding whether to make an order appointing
a day for the period to end, the Secretary of State is required
to take into account any vote under section 3(3) which is passed
with cross-community support: subsection (2).
10. The order appointing a day for the end of
the suspension period may, like the suspension order itself, make
such consequential, incidental and supplementary modifications
of enactments as appear to the Secretary of State to be necessary
or expedient: subsection (3).
11. Subsection (4) provides for the power to
make an order under subsection (1) to be exercisable by statutory
instrument, and provides for two alternative methods of Parliamentary
control. Either the Order must be approved in draft by resolution
of each House of Parliament before it is made: subsection (4)(a);
or the Order must contain a declaration that the Secretary of
State considers it expedient for it to be made without a draft
having been approved: subsection (4)(b).
12. Where the second alternative is chosen, the
order must be laid before Parliament after being made and will
cease to have effect if not approved by resolution of each House
at the end of forty days after the date on which it is made. In
the normal way, any time during which Parliament is dissolved
or prorogued or during which both Houses are adjourned for more
than four days is excluded for the purposes of calculating this
period: clause 6(3).
13. It is considered appropriate to give Parliament
a full opportunity to scrutinise and debate the Secretary of State's
proposal to bring the suspension period to an end, so triggering
the restoration of devolved government and the resumption of ministerial
offices under clause 4. In ordinary circumstances, an order under
subsection (1) would therefore be subject to the draft affirmative
14. There may, however, be circumstances (perhaps
during a Parliamentary recess) where it would be undesirable to
wait for a sustained period before the resumption of devolved
government and the other institutions of the Belfast Agreement
could take effect. Politically, much may hang on an early resumption
once sufficient agreement has been reached between the parties
to permit it. Where the Secretary of State believes it expedient
to act promptly, therefore, the order could take effect immediately,
but would be subject to later approval by Parliament. The Committee
will note that this is arrangement is similar to the frequently-adopted
"urgency procedure" (see, for example, paragraph 1(3)(b)
of Schedule 1), although the test here is one of expediency that
suspension should be ended promptly, rather than urgency.
CLAUSE 5 - IMPLEMENTATION BODIES
15. Subsections (1) and (2) impose a duty on
the Secretary of State to make provision by order in relation
to the transfer of functions from, and back to, implementation
bodies in circumstances where this is required by arrangements
made between the British and Irish Governments.
16. An implementation body is defined as any
body which is, or has at any time been, an implementation body
within the meaning of section 55 of the 1998 Act: subsection (4).
Six implementation bodies will be established on devolution by
the Agreement between the British and Irish Governments establishing
Implementation Bodies, done at Dublin on 8 March 1999. Those bodies
will acquire functions in domestic law on the appointed day by
virtue of the North/South Co-operation (Implementation Bodies)
(Northern Ireland) Order 1999 (SI 1999/859).
17. The Secretary of State's duty to make an
order under subsection (1) or (2) will be triggered by arrangements
made under an agreement between the British and Irish Governments.
It is intended that an agreement to be concluded between the British
and Irish Governments will provide that within four months of
a suspension the Governments will agree on arrangements for the
transfer of the implementation bodies' functions to the relevant
Northern Ireland and Irish departments or agencies (referred to
here as stage 1). There is to be an exception for those cases
where a body exercises functions which were previously discharged
on a cross-border basis (as in the cases of the functions of the
present Foyle Fisheries Commission, which are due to pass on devolution
to an implementation body).
18. It is intended that the agreement will also
require arrangements to be made for the transfer of functions
back to the implementation bodies at the end of a suspension period
(referred to here as stage 2).
19. Once the stage one arrangements take effect
during a suspension period, the Secretary of State will be required
to make an order under subsection (1). The order will give effect
to these arrangements in domestic law by transferring from an
implementation body to a Northern Ireland Department any functions
which fall to be so transferred under the arrangements.
20. Similarly, once the stage two arrangements
take effect after a suspension period has come to an end, the
Secretary of State will be under a duty to make an order under
subsection (2) transferring functions from a Northern Ireland
Department back to an implementation body.
21. Orders under these subsections may also make
such consequential etc. modifications of enactments as the Secretary
of State considers necessary or expedient: subsection (3)(a).
22. An order under subsection (1) or (2) will
be necessary in order to give effect in domestic law to the UK's
international obligations. The negative resolution procedure,
provided for in subsection (3)(b), is considered to offer an appropriate
level of Parliamentary scrutiny in these circumstances. The principal
order under section 55 of the 1998 Act which makes substantive
provision in respect of the implementation bodies, noted at paragraph
16 above, has already been approved in draft by Parliament under
the affirmative resolution procedure.
PARAGRAPH 1(1) - POWER TO LEGISLATE BY ORDER IN COUNCIL
23. This paragraph provides a power to legislate
for Northern Ireland by Order in Council during a suspension period.
The power is limited to the legislative competence of the Assembly,
and the affirmative resolution applies except in urgent cases:
24. The power is based on the arrangements enacted
for the "interim period" by the Northern Ireland Act
1974, which will be repealed with effect from the day appointed
for devolution under the Northern Ireland Act 1998. The degree
of Parliamentary control over proposed Orders in Council would
be the same during a suspension period as it is during the interim
period. As under the 1974 Act, this Order-making power must be
periodically renewed by Parliament: see the following paragraph.
PARAGRAPH 1(7) - POWER TO EXTEND THE PERIOD DURING
WHICH LEGISLATION MAY BE MADE BY ORDER IN COUNCIL
25. The power to legislate by Order in Council
lasts only for the first six months of any suspension period:
sub-paragraph (1). The power may be extended by an Order under
sub-paragraph (7), made by the Secretary of State and subject
to the affirmative resolution procedure: sub-paragraph (8). An
order may extend the power for up to six months.
26. This compares with the 1974 Act as follows.
Under that Act, the interim period (and therefore both the legislative
and the executive arrangements during that period) may be renewed
for up to one year at a time, by an Order which is subject to
the affirmative resolution procedure. Under the Bill, the suspension
period itself is indefinite; within that period, the legislative
arrangements (but not the executive functions) will lapse after
six months if not renewed.
27. The view is taken that the power to legislate
by Order in Council during the suspension period, rather than
by Bill at Westminster, is the aspect of the suspension arrangements
which should receive periodic scrutiny by Parliament. Renewal
would therefore be more frequent than under the 1974 Act. By contrast,
the conferring of executive functions on the Secretary of State
is an inevitable consequence of the absence, for any period, of
devolved government in Northern Ireland and of any alternative
institutions upon which to confer them.
PARAGRAPH 8 - ACCOUNTS, REPORTS AND OTHER DOCUMENTS
28. Sub-paragraph (1) requires certain accounts
and reports to be laid before the House of Commons (rather than
Parliament, since they are all financial reports) instead of the
Assembly during a suspension period. The requirement contrasts
with the provision in paragraph 3 whereby any rule requiring documents
to be laid before the Assembly has no effect during suspension.
(See also paragraph 7, which replaces Assembly approval with House
of Commons approval in the appointment of the Comptroller and
Auditor General; and paragraph 9, which substitues Parliament
for the Assembly in the context of the Ombudsman and the Commissioner
29. Sub-paragraph (3) contains an enabling power:
the Secretary of State may prescribe accounts, reports and other
documents, in addition to those covered by sub-paragraph (1),
which are to be laid before Parliament. There are many documents
which are required, under various enactments, to be laid before
the Assembly. This provision allows the Secretary of State to
require those of sufficient importance to be laid before Parliament.
30. The negative resolution procedure is thought
to provide the right level of Parliamentary control for this Order.
13 July 1999