Select Committee on Delegated Powers and Deregulation Fourth Report



Memorandum by the Northern Ireland Office


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 which apply. (The Northern Ireland Bill 1999 contained similar provisions giving power for delegated legislation. The Committee reported on the provisions of that Bill in its Twenty-fifth Report (14 July 1999, HL Paper 89).)


2.  The Bill suspends devolved government in Northern Ireland. It provides for the operation of the devolved institutions to be restored (or later suspended again) by order of the Secretary of State. The Bill sets out the arrangements to be made during the suspension period.

Clause 2 - ending the period of suspension

3.  Subsection (2) enables the Secretary of State by order to discontinue clause 1 of the Bill and so restore devolved government. Before making such an order he is required to take into account the result of the review which subsection (1) requires him to take steps to initiate under the Validation, Implementation and Review section of the Belfast Agreement as soon as reasonably practicable after suspension begins.

4.  By virtue of clause 7(2) such an order may make such consequential, supplemental or transitional provisions as appear necessary or expedient.

5.  By virtue of clause 7(4) a restoration order is to be subject to the affirmative resolution procedure, save that, in cases of urgency, it may be made without Parliamentary approval, but must be laid before Parliament and will cease to have effect if not approved by each House within forty sitting days of its being made (clause 7(5) and (6)).

6.  It is right that Parliament should be given the opportunity to approve an order restoring devolved government, but equally right that the Secretary of State should be able to act in advance of parliamentary approval if it appears necessary to do so, for example during a parliamentary recess or if the Secretary of State judges a prompt resumption necessary for political reasons. Even so parliamentary approval would still have to be obtained if the order were not to cease to have effect.

Clause 4 - further suspension of devolved government

7.  This clause provides that the effect of an order made by the Secretary of State revoking a restoration order made under clause 2(2) is to bring section 1 into force again. The Secretary of State may thus trigger the suspension of devolved government on subsequent occasions by order.

8.  Any future suspension of devolved government by this means would merit a high level of Parliamentary scrutiny. Any order revoking a restoration order will therefore, like the restoration order itself, be subject to the affirmative resolution procedure, subject to the ability to make an order under the urgency procedure as described above in relation to restoration orders (clause 7(4) - (6)).

Clause 5 - implementation bodies

9.  Subsection (1) imposes a duty on the Secretary of State to make provision by order transferring functions, insofar as they relate to Northern Ireland, from an implementation body to a Northern Ireland department in circumstances where this is required by arrangements made between the British and Irish governments during a suspension period. Subsection (2) imposes a similar duty to make an order transferring functions back from a Northern Ireland department to an implementation body following restoration of devolved government. Again, the trigger for the Secretary of State's duty is arrangements made between the British and Irish governments.

10.  Six implementation bodies were established on devolution by the Agreement between the British and Irish Governments establishing Implementation Bodies done at Dublin on 8 March 1999. Those bodies acquired functions in domestic law by virtue of the North/South Cooperation (Implementation Bodies) (Northern Ireland) Order 1999 (S.I. 1999/859).

11.  By virtue of clause 7 orders under clause 5 are to be subject to the affirmative resolution procedure, with provision for action in advance of Parliamentary approval in cases of urgency. The procedure is consequently the same as the procedure applicable to a restoration order.

Clause 6 - power to make consequential provision

12.  Clause 6 enables the Secretary of State by order to make such modifications of enactments as appear to him to be necessary or expedient in consequence of any provision made by, or under, the Bill. "Enactment" is defined in clause 8(1) as including a provision of an Act (including the Bill); a provision of, or of any instrument made under, Northern Ireland legislation; and a provision of subordinate legislation. The power is a wide one; but it is necessary to make provision for changes that may be needed to all forms of legislation in consequence of suspension or restoration.

13.  By virtue of clause 7 orders under clause 6 are, like restoration orders, subject to affirmative resolution, with provision for the urgency procedure. This seems appropriate: Parliament should be given the opportunity to debate changes to legislation, but it may be necessary to act quickly in certain cases.

Clause 9 - commencement

14.  Subsection (2) of clause 9 confers power to bring the Act (apart from subsection (1) and clause 9(2) itself), into force on a day appointed by order. The order is to be made by statutory instrument (clause 7(1)) and is not subject to any Parliamentary procedure (see the exception to clause 7(4)). This is in line with the normal approach to commencement orders.


Paragraph 1(1) - power to legislate by Order in Council

15.  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 procedure applies except in urgent cases: paragraph 2.

16.  The power is based on the arrangements enacted for the "interim period" by the Northern Ireland Act 1974, which was repealed by the Northern Ireland Act 1998. The degree of Parliamentary control over proposed Orders in Council will be the same during a suspension period as it was during the interim period. As under the 1974 Act, this order-making power must be periodically renewed by Parliament.

17.  By virtue of paragraph 1(3) the power to legislate by Order in Council lasts only for the first six months of any suspension period. The power may be extended for further periods of up to six months by an order under paragraph 1(4). Such an order is subject to the affirmative resolution procedure by virtue of clause 7(4) (although, in this case, the urgency procedure is not available - see the exception to clause 7(5)).

18.  Under the 1974 Act the interim period (and therefore both the legislative and the executive arrangements made during that period) could be renewed for up to one year at a time by order subject to affirmative resolution. Under the Bill, the suspension period is potentially indefinite; within that period, the legislative arrangements (but not the executive functions) will lapse after six months if not renewed.

19.  The view has been taken that the power to legislate by Order in Council during the suspension period, rather than by Bill at Westminster, is the aspect of a suspension arrangement which should receive periodic scrutiny by Parliament. Renewal is to 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 12 - accounts, reports and other documents

20.  Paragraph 12(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 7 whereby any rule requiring documents to be laid before the Assembly has no effect during suspension. (See also paragraph 11, which replaces Assembly approval with House of Commons approval in the appointment of the Comptroller and Auditor General; and paragraph 13, which substitutes Parliament for the Assembly in the context of the Ombudsman and the Commissioner for Complaints.)

21.  Paragraph 12(4) contains an enabling power under which the Secretary of State may prescribe accounts, reports and other documents in addition to those covered by paragraph 12(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.

22.  The negative resolution procedure (clause 7(3) and paragraph 12(5) (this is an inadvertent duplication)) is thought to provide the right level of Parliamentary control for this order.

7 February 2000

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