Northern Ireland (Executive Formation and Exercise of Functions) Bill
1.This Bill is expected to go through second reading and remaining stages in the House of Commons on Wednesday 24 October and through all stages in the Lords on Tuesday 30 October. We are publishing this report before the Bill is introduced into the House of Lords because of this time constraint.
2.The Bill amends the provisions which govern the time within which an Executive must be appointed following the Assembly election which took place on 2 March 2017. It also makes provision enabling senior departmental officers to exercise functions of a Northern Ireland department and for conferring powers on the Secretary of State and other Ministers of the Crown to exercise appointment functions for Northern Ireland offices. The context of the provisions made by the Bill is the continuing absence of a Northern Ireland Executive, and therefore the absence of Northern Ireland Ministers to exercise, and to oversee the exercise of, the relevant functions.
3.The Northern Ireland Office has provided a Delegated Powers Memorandum.1 There is one matter we wish to draw to the attention of the House.
Clause 4—Appointment functions of NI ministers which may be exercised by UK ministers
4.Clause 4 is concerned with allowing UK ministers in certain circumstances to exercise the appointment functions of a Northern Ireland minister. Clause 4(2) lists the offices to which this transfer of appointment functions applies. The list is relatively a short one. According to the Department the offices which have been chosen are those where there is an urgent need for the functions to be exercisable to ensure good governance and public confidence in the institutions in Northern Ireland. Given the devolution settlement, the Department has sought not to list an office unless there is a pressing need to do so.
5.Clause 4(3) confers a regulation-making power on the Secretary of State to add entries to the list in clause 4(2). According to the Department, this power is required to deal with the situation where there is an urgent need for appointment functions to be exercised in relation to a particular office which is not currently listed in clause 4(2).
6.Regulations under clause 4(3) are subject to the negative resolution procedure despite the fact that they involve the amendment of primary legislation and therefore are Henry VIII powers. The Department’s reasons for requiring the negative resolution procedure are set out in paragraphs 55 and 56 of the memorandum:
- The negative resolution procedure is proposed because it may be necessary to add to the offices listed in clause 4(2) at short notice especially in the event of a pressing vacancy or other function that needs exercising in relation to a public office. The Department recognises that an alternative would have been to require the regulations to be subject to the approval of both Houses after they are made (“made affirmative procedure”). However, they suggest that the possibility of non-approval could lead to uncertainty for any affected public bodies and in particular any office holders appointed under the regulations.
- The Department also relies on the limited nature of the power. It can only be used to add further offices to the list in clause 4(2). It cannot be used to amend the appointment functions which are exercisable in relation to a particular office.
7.We are not convinced by the Department’s reasons:
- The main reason given for using the negative resolution procedure is that the powers may need to be exercised urgently. But, as the Department recognises, it is possible for urgency to be met using a made affirmative procedure as well as the negative procedure. The Department contends that requiring the affirmative procedure might give rise to an unacceptable level of uncertainty. But we are not convinced by this argument. It is of course only very rarely that an affirmative instrument is not approved by both Houses. Also, the negative resolution procedure arguably carries with it a similar uncertainty because of the possibility that the instrument may be prayed against.
- Nor do we consider it right to characterise this as a narrow or limited power. There are no limits on the kinds of offices which may be included in the list in clause 4(2). It is capable of applying to any office in respect of which appointment functions are exercisable by Northern Ireland ministers. Also, there are no limits on the circumstances in which an office may be included in the list. In our view the exercise of appointment functions in relation to some Northern Ireland offices is likely to be politically sensitive; and this also suggests a high level of scrutiny is appropriate.
8.Accordingly, we take the view that the power to add new offices to the list in clause 4(2) should be subject to the affirmative resolution procedure.
Ivory Bill: Government Response
9.We considered this Bill in our 31st Report of this Session.2 The Government have now responded by way of a letter from Lord Gardiner of Kimble, Parliamentary Under Secretary of State for Rural Affairs and Biosecurity at the Department for Environment, Food and Rural Affairs, printed at Appendix 1.
Children Act 1989 (Amendment) (Female Genital Mutilation) Bill [HL]
10.This Bill contains no delegated powers.
1 Northern Ireland Office, Northern Ireland (Executive Formation and Exercise of Functions) Bill Delegated Powers Memorandum
2 Delegated Powers and Regulatory Reform Committee (31st Report, Session 2017–19, HL Paper 177)