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BRIEFING PAPER

Number 08418, 18 October 2018

Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19

By David Torrance

Contents: 1. Background 2. The Bill

2 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19

Contents Summary 3

1. Background 4 1.1 Collapse of the Assembly and Executive 4 1.2 Events since November 2017 5 1.3 Pressure in Northern Ireland 5 1.4 Pressure at Westminster 6

Abortion 6 Same-sex marriage 7 Northern Ireland Affairs Committee 7

1.5 Assembly elections 8 Historical Institutional Abuse inquiry 9

1.6 Decisions by civil servants 10 1.7 Public appointments 12 1.8 Other issues: external facilitation 13 1.9 Reactions to the draft Bill 13

2. The Bill 15 Executive formation 16 Exercise of departmental functions 16 Exercise of appointment functions 17

Cover page image copyright attributed to: DSC01772-6, Belfast Parliament, Belfast, Northern Ireland. Licensed under CC BY 2.0/ image cropped.

3 Commons Library Briefing, 18 October 2018

Summary The Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19 was introduced into the House of Commons on 18 October 2018. The text of the Bill and Explanatory Notes are available on the Bill pages on the Parliamentary website. At the Business Question on 18 October, the Leader of the House, Andrea Leadsom MP, announced that the Government’s intention is for all of the House of Commons stages of the Bill to be taken on Wednesday 24 October.

The Bill would provide authority for the UK Government to suspend the Secretary of State for Northern Ireland’s obligation to call another Assembly election for a time-limited period, enable civil servants to take certain decisions in the absence of Northern Ireland Ministers, and permit UK Ministers to make some public appointments in the absence of a fully-functioning Assembly and Executive.

4 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19

1. Background

1.1 Collapse of the Assembly and Executive There has been neither an Executive nor a fully-functioning Assembly in Northern Ireland since January 2017. The Assembly elected on 2 March 2017 has not been formally suspended, as in the past, and Members of the Legislative Assembly (MLAs) have continued to carry out a range of activities, most significantly constituency work. Nor has Westminster introduced “direct rule”.

The present situation followed a dispute between the two main governing parties, the Democratic Unionist Party (DUP) and Sinn Féin, concerning the Renewable Heat Incentive (RHI) scheme, which later became the subject of a public inquiry. Martin McGuinness resigned as Deputy First Minister on 9 January 2017, and Sinn Féin declined to nominate a successor.

An extraordinary election was held on 2 March 2017, which saw the DUP and Sinn Féin re-emerge as the largest parties. An initial round of talks on forming an Executive took place, but on 27 March the statutory time limit for the appointment of Ministers passed. The deadline for a second round of talks also passed on 18 April. On 27 April, the statutory time limit for creating an Executive was extended to 108 days.1

This process was interrupted by a UK general election on 8 June 2017, after which a third round of talks began. On 26 June, the Conservatives and DUP negotiated a Confidence and Supply Agreement for the UK Government, which included an additional £1 billion funding for Northern Ireland. A fourth round of talks began on 4 September 2017.2

Agreement seemed close following a fifth round of talks in February 2018, but the DUP leader Arlene Foster said a deal proved impossible due to the “standalone” Irish Language Bill sought by Sinn Féin. There was also disagreement on same-sex marriage in Northern Ireland, and complications arising from the ongoing Brexit negotiations.3

In a statement, Foster said the failure of the talks meant it was:

now incumbent upon Her Majesty’s Government to set a budget and start making policy decisions about our school, hospitals and infrastructure.4

Karen Bradley, the Secretary of State for Northern Ireland since James Brokenshire’s resignation on 8 January 2018, said she would consider “practical steps” following the breakdown in talks.5

1 See section 1(1) of the Northern Ireland (Ministerial Appointments and Regional

Rates) Act 2017. 2 The Northern Ireland Affairs Committee report, Devolution and democracy in

Northern Ireland – dealing with the deficit, includes a useful “Timeline” of events in Northern Ireland 2016-18 on pp3-4.

3 See BBC News online, “Power-sharing talks collapse at Stormont”, 14 February 2018.

4 The Journal, “McDonald: 'Three language acts were included in draft DUP deal, but no agreement on marriage equality'", 15 February 2018.

5 Ibid.

5 Commons Library Briefing, 18 October 2018

1.2 Events since November 2017 Following Royal Assent for the Northern Ireland Budget Act 2017 in November 2017,6 Parliament passed both the Northern Ireland Budget (Anticipation and Adjustments) Act 2018 and the Northern Ireland Assembly Members (Pay) Act 2018 in March 2018.7

A few months later, the Northern Ireland Budget Act 2018 made further provision for spending on public services in Northern Ireland to continue until 31 March 2019.8

The Northern Ireland Assembly Members (Pay) Act 2018 allowed the Secretary of State to intervene on pay for Members of the Legislative Assembly (MLAs). On 29 March 2018, she issued a “determination” that a £500 inflationary increase due on 1 April 2018 would not apply.9

In a statement on 6 September 2018, Karen Bradley said she would:

take the steps necessary to reduce Assembly members’ salaries in line with the recommendations made by Trevor Reaney. The reduction will take effect in two stages, commencing in November – it would not reduce the allowance for staff as I do not think that MLAs’ staff should suffer because of the politicians’ failure to form an Executive.10

On 28 September 2018, the Secretary of State wrote to MLAs to confirm their salary would be cut by 15% from 1 November, and by a further 12.5% from 1 January 2019 if an Executive had not been formed.11

1.3 Pressure in Northern Ireland On 10 April 2018, politicians and commentators marked the 20th anniversary of the Belfast/Good Friday Agreement. Later, on 28 August, some claimed Northern Ireland had broken the “world record” for lacking an elected government.12

As a result, pressure has continued to build for more direct intervention from the UK Government, with local government and third sector organisations attempting to fill the gap between “direct rule” from Westminster and fully-functioning devolution in Belfast.

In April 2018, a “Political Forum” instigated by the Northern Ireland Local Government Association (NILGA) in association with MLAs and councillors drawn from the five main political parties met for the first

6 See Commons Library Briefing Paper CBP8122, Northern Ireland Budget Bill 2017-

19, 14 November 2017. 7 See Commons Library Briefing Paper CBP8264, Northern Ireland Budget

(Anticipation and Adjustments) Bill 2017-19, 20 March 2018, and Commons Library Briefing Paper CBP8267, Northern Ireland Assembly Members (Pay) Bill 2017-19, 21 March 2017.

8 See Commons Library Briefing Paper CBP8363, Northern Ireland Budget (No. 2) Bill 2017-19, 4 July 2018.

9 Northern Ireland Office, “Secretary of State determination”, 29 March 2018. 10 HC Deb 06 September 2018 vol 646 c347 11 Northern Ireland Office news release, “Secretary of State confirms MLA pay reduced

by 1 November 2018”, 28 September 2018. 12 As Northern Ireland is a devolved part of the United Kingdom and not a sovereign

state, Belgium still holds the record at 589 days without an elected government.

6 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19

time in “a focussed attempt to develop proper political scrutiny at local level of public sector spending and policy development”.13

A NILGA paper published in June set out the case for greater devolution to local government in the absence of a functioning Assembly.14 The Northern Ireland Council for Voluntary Action (NICVA) also called on the UK Government to:

step in and fund an officially-recognised Citizens Assembly so that the people can show politicians what leadership means and get to work on some of the problems they seem incapable of solving.15

1.4 Pressure at Westminster Several MPs at Westminster have also campaigned on abortion and same-sex marriage, legal in Great Britain but not in Northern Ireland. These issues had a high profile after the Republic of Ireland voted to decriminalise same-sex marriage and abortion in two constitutional referendums (in May 2015 and May 2018 respectively).

Abortion On 7 June 2018, the United Kingdom Supreme Court said the ban on terminations in cases of rape, incest or fatal foetal abnormality in Northern Ireland needed “radical reconsideration”.16 The Secretary of State for Northern Ireland, however, said the:

Government’s view is that the decisions about abortion and the laws that apply in Northern Ireland should rightly and properly be decided by the people of Northern Ireland and their elected politicians.17

Some anti-abortion MPs (for example, in the DUP) and activists agreed with that view, while others believed Westminster had a responsibility to make sure certain laws applied to every part of the UK.

On 5 June 2018, Walthamstow MP Stella Creasy led an emergency debate in the Commons on removing sections of the Offences Against the Person Act 1861, perhaps by amending the Government’s planned Domestic Abuse Bill.18 In September, meanwhile, the Commons’ Women and Equalities Committee announced an inquiry into abortion law in Northern Ireland.

On 28 September 2018, Sinn Féin deputy leader Michelle O’Neill, SDLP leader Colum Eastwood, UUP MLA Doug Beattie and Alliance Party leader Naomi Long issued a joint call for a change in the law:

13 NILGA website, “New Political Forum meets despite Assembly impasse”, 29 August

2018. 14 See Peter Kenway & Issy Petrie, Devolution within Northern Ireland, New Policy

Institute, June 2018. 15 Nick Garbutt, “We deserve better: bringing power to the people”, NICVA website,

17 August 2018. 16 [2018] UKSC 27 17 https://www.parliament.uk/business/news/2018/june/urgent-question-on-abortion-

in-northern-ireland/ 18 The Abortion Act 1967 was not extended to Northern Ireland. The Infant Life

(Preservation) Act 1929 was extended to Northern Ireland in 1945, permitting an abortion to preserve a mother's life.

7 Commons Library Briefing, 18 October 2018

Northern Ireland has been without government since January 2017, we are concerned about the harm being caused to women living under the existing Victorian era legislation which makes abortion illegal in almost every circumstance […]

We note that 919 women travelled to England in 2017 for this healthcare service and countless others purchased abortion pills online, in doing so risked prosecution.

We further note that the UN Committee on the Elimination of Discrimination against Women found that the UK is responsible for ‘grave and systematic’ violations of women’s rights by unduly restricting their access to abortion and recommended the repeal of sections 58 and 59 of the Offences against the Person Act 1861.

We call on UK Government to decriminalise abortion by repealing sections 58 and 59 of the 1861 Offences Against the Person Act and to ensure a human rights compliant framework governing access to abortion.19

The first reading of a Ten Minute Rule Bill to decriminalise abortion in Northern Ireland is scheduled on 23 October 2018. The Bill has been co-sponsored by MPs from five different political parties.20

Same-sex marriage Members of the Northern Ireland Assembly have debated same-sex marriage several times, narrowly voting in favour in November 2015. However, it was blocked by the DUP using a mechanism known as a Petition of Concern.

On 27 March 2018, Lord Hayward’s Marriage (Same Sex Couples) (Northern Ireland) Bill 2017-19 passed its first reading in the Lords. A second reading is yet to be scheduled.

In a written answer to Labour MP Conor McGinn on 20 February 2018, Karen Bradley said the Government would allow a free vote on the issue, as a matter of conscience, were it to come before the Commons.

Mr McGinn’s Marriage (Same Sex Couples) (Northern Ireland) (No.2) Bill 2017-19 was introduced under the Ten Minute Rule and passed its first reading in the Commons on 28 March 2018. Provisionally, a second reading is scheduled for 26 October.

Northern Ireland Affairs Committee In its report, Devolution and democracy in Northern Ireland – dealing with the deficit, the Northern Ireland Affairs Committee observed that the UK Government had declined to “increase its role in decision-making in Northern Ireland beyond limited financial legislation and taking modest action on MLAs’ pay”:

Stakeholders told us that this ‘care and maintenance’ form of governance was not sustainable […] The Committee accepts that further ministerial intervention will be required on devolved matters […] The Secretary of State must, before the summer

19 ITV News online, “Tory MPs join campaign to ease abortion laws in Northern

Ireland”, 28 September 2018. 20 Jean Mackenzie and Andy Smythe, “UK government 'must act on Northern Ireland

abortion'”, BBC News online, 10 October 2018.

8 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19

recess, bring forward proposals as to how she will take ministerial decisions whilst adhering to these principles.21

A week before the Government published its response to the committee, the Secretary of State for Northern Ireland announced her intention to “introduce primary legislation” after the September-October conference recess to allow certain decisions to be taken in the absence of a devolved Executive. She told the House of Commons that “critical strategic decisions” were needed on:

investment, reform of public services and future budgets. Critical cross-cutting programmes – addressing social deprivation, tackling paramilitarism – are stalling following 19 months without devolved government. As this impasse continues, public services are suffering. Businesses are suffering. The people of Northern Ireland are suffering. Local decision-making is urgently needed to address this. The only sustainable way forward lies in stable, fully functioning and inclusive devolved government. So, with determination and realism, we must set a clear goal of restoring the devolved power-sharing Executive and Assembly.22

1.5 Assembly elections In her statement on 6 September 2018, the Secretary of State said she had kept her “duty to set a date for a fresh [Assembly] election under review”, but:

In order to ensure certainty and clarity on this issue, I intend, therefore, to introduce primary legislation in October to provide for a limited and prescribed period in which there will be no legal requirement to set a date for a further election, and importantly, during which time an Executive may be formed at any point without the requirement for further legislation. This will provide a further opportunity to re-establish political dialogue with the aim of restoring the Executive as soon as possible.23

This “duty” is stipulated neither in the original Northern Ireland Act 1998, nor the Act as amended by the Northern Ireland (St Andrews Agreement) Act 2006. It is instead inferred from a different obligation imposed on the Secretary of State by the 1998 Act.

The Northern Ireland (Ministerial Appointments and Regional Rates) Act 2017 provides that, if a First Minister and Deputy First Minister have not been appointed within 108 days of the first meeting of the Assembly elected in 2017, then:

The Secretary of State shall propose a date for the poll for the election of the next Assembly.24

Before the 2017 Act, the figure was 14 days.25

A plain reading of this provision might suggest the Secretary of State must in fact designate a date shortly after that period expires. However,

21 Northern Ireland Affairs Committee, Devolution and democracy in Northern Ireland –

dealing with the deficit, 22 May 2018. 22 HC Deb 06 September 2018 vol 646 c347 23 Ibid., c347. 24 Northern Ireland Act 1998 section 32 (3) 25 See sections 16A and 32 of the Northern Ireland Act 1998.

9 Commons Library Briefing, 18 October 2018

a literal reading of that obligation was rejected by the House of Lords in a case decided in 2002.

Box 1: Robinson v Secretary of State for Northern Ireland [2002] UKHL 32

The original Northern Ireland Act 1998 imposed a duty on the Secretary of State for Northern Ireland to “propose a date for a poll for the election of the next Assembly” if, after six weeks of a vacancy or following an Assembly election, no First Minister and Deputy First Minister had been appointed. Power-sharing had been formally restored on 23 September 2001. The first Assembly ballot was held on 2 November 2001 (2 days before the deadline expired). David Trimble (UUP) and Mark Durkan (SDLP) failed to receive the requisite cross-community support to be elected. The Alliance MLAs, previously unaffiliated, designated themselves as Unionists following cross-party talks in the days following the failed vote. This enabled a vote to take place on 6 November (2 days after the deadline expired) in which David Trimble and Mark Durkan were duly elected as First Minister and Deputy First Minister. The Secretary of State decided, in the extraordinary circumstances, to designate the date of the next poll for Northern Ireland elections as 1 May 2003, the date on which elections would, in any case, have taken place by default. Peter Robinson MLA, leader of the DUP, challenged the legality of the second Assembly ballot and of the Secretary of State’s decision regarding the next poll date. He argued that the Secretary of State was instead under a duty to call fresh Assembly elections as soon as reasonably practicable because the statutory limit had expired. The House of Lords ruled (by a majority of 3-2) that both the election of FM and DFM and the Secretary of State’s decision were lawfully taken. Adopting a “generous and purposive” interpretation of a constitutional statute, Lord Bingham concluded that:

Parliament imposed no temporal limitation either on the making of the proposal or on the date proposed. If there appeared to be no prospect of an imminent and effective election under section 16(8), or if the Assembly resolved under section 32(1) that it be dissolved forthwith, the Secretary of State would no doubt be expected to propose a very early date for a poll. If, on the other hand, the Assembly resolved on dissolution at a future date earlier than its normal terminal date, the Secretary of State might no doubt be expected to propose a date further in the future. And if an effective election under section 16(8) appeared to be imminent, one would expect the Secretary of State to pause in order that the political process might take effect and, if it did, to propose a date in the future which would take account of that effective election.26

The judgment in the Robinson case (on which see Box 1) appears to underpin the Secretary of State’s current position as to Northern Ireland Assembly elections. The implication of the judgment is that, although the Secretary of State is under a duty to propose a date for the future poll, it is within his or her discretion to decide exactly when to make such a proposal, and on what date the election should be, depending on the wider constitutional context.

Historical Institutional Abuse inquiry It appears the Northern Ireland Office was also concerned that a pending judicial review brought by survivors of institutional abuse in Northern Ireland might result in further pressure to hold fresh Assembly elections.

26 Robinson v Secretary of State for Northern Ireland and Others (Northern Ireland)

[2002] UKHL 32, para 15.

10 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19

In January 2017, the Historical Institutional Abuse (HIA) inquiry chaired by Sir Anthony Hart recommended compensation ranging from £7,500 to £100,000. The lack of a devolved Executive, however, prevented implementation.

In granting leave for a judicial review in April 2018, Mr Justice McCloskey said there was:

a seemingly indefinite moratorium in Northern Ireland affecting the Executive and the legislature […] One of the consequences of this moratorium is that members of the Northern Ireland population are driven to seek redress from the High Court in an endeavour to address aspects of the void that has been brought about by the absence of a government and legislature.27

A substantive hearing of the case was to be held no later than September 2018, but it was later adjourned until November.

1.6 Decisions by civil servants In her September 2018 statement, the Secretary of State also announced plans to enable the Northern Ireland Civil Service (NICS)28 to make decisions in the absence of Ministerial direction:

Following the recent decision of the Northern Ireland Court of Appeal in the Buick case, I recognise that there is a need to provide reassurance and clarity to both the NICS and the people of Northern Ireland on the mechanisms for the continued delivery of public services.

So, the legislation I intend to introduce after the conference recess will also include provisions to give greater clarity and certainty to enable NI departments to continue to take decisions in Northern Ireland in the public interest and to ensure the continued delivery of public services.

Ms Bradley added that she intended to consult parties in Northern Ireland “over how this might best be done”.29

Section 22 of the Northern Ireland Act 1998 makes clear that statutory functions can be conferred on Northern Ireland departments by name as well as on Northern Ireland Ministers. While functions conferred directly on Ministers have not been exercised since March 2017, Section 4(1) of the Departments (Northern Ireland) Order 1999 requires that the “functions of a department shall at all times be exercised subject to the direction and control of the Minister”.

Northern Ireland departments had interpreted this obligation as applying only when Ministers were in post, and thus had continued to take decisions following the collapse of the Executive in January 2017. In September 2017, for example, the Northern Ireland Department for Infrastructure granted planning permission for the Arc 21 waste disposal incinerator at Mallusk.

27 Alan Erwin, “Historical abuse victims secure judicial review in bid to win

compensation”, Belfast Telegraph, 13 April 2018. 28 The NICS is operationally separate from the Home Civil Service in Great Britain. 29 HC Deb 06 September 2018 vol 646 cc347-48

11 Commons Library Briefing, 18 October 2018

On 14 May 2018, Mrs Justice Keegan, sitting in the High Court in Belfast, ruled that Peter May, the department’s permanent secretary, had acted unlawfully in so doing:

I do not consider that Parliament can have intended that such decision making would continue in Northern Ireland in the absence of ministers without the protection of democratic accountability.

Mrs Justice Keegan added that the case advanced by the Department for Infrastructure “would mean civil servants in Northern Ireland could effectively take major policy decisions such as this one for an indefinite period”.30

The Court of Appeal dismissed an appeal by the Department for Infrastructure against the judgment on 6 July 2018.31 As many independent commentators pointed out, this meant that in the absence of an Executive and, therefore, ministerial direction, civil servants would be further constrained when it came to making decisions.

In August 2018, a Freedom of Information request revealed the extent of untaken decisions at Northern Ireland’s Department for Communities.32

Austen Morgan, a barrister in London and Belfast, argued that this left Northern Ireland’s eight departments “seriously constitutionally exposed”:

Under the Ministries of Northern Ireland Act (Northern Ireland) 1921, drafted by Sir Arthur Quekett (who had come north from the local government board in Dublin), departments (or ministries) were made bodies corporate with the power ‘to acquire and hold land’ […] That is why judicial review is against departments, and not ministers (except for the Northern Ireland Office, which is a UK department).33

In a speech to the British-Irish Association, Karen Bradley referred to “other examples of where a current lack of ministerial decision making is holding Northern Ireland back”:

Corporation tax has yet to be devolved, meaning that Northern Ireland remains at an economic disadvantage when it comes to competing for foreign direct investment with Ireland. Construction projects worth up to £2bn are at risk due to the lack of key planning decisions, including plans for a new £30m quay for cruise ships, a new £175m transport hub for Belfast, a £280m power plant, the North-South electricity interconnector worth around £200m and a £50m office block at Belfast Harbour. Strategies for building a stronger society and a shared future, as well as tackling paramilitary activity, have lost momentum.34

30 R (Buick) v Department of Infrastructure [2018] NIQB 43 31 R (Buick) v Department of Infrastructure [2018] NICA 26 32 Sam McBride, “Revealed: One Stormont department’s decisions which can’t be

taken”, NewsLetter, 2 August 2018. 33 Austen Morgan, “London might now have to bring in direct rule after incinerator

ruling”, NewsLetter, 23 May 2018. The Departments (Northern Ireland) Order 1999 also states that departments have a separate legal personality.

34 Northern Ireland Office, “Secretary of State Speech to the British-Irish Association Annual Conference”, 7 September 2018.

12 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19

Speaking at an event in Brussels, David Sterling, head of the NICS, said civil servants in Northern Ireland had been “doing what we can over the past 18 months to manage the most pressing issues”:

But we are relatively powerless to deal with the most difficult problems. Only ministers can decide what are the best strategies and policies to make a difference, only ministers can set priorities for action, and only ministers can choose how best to allocate the scarce resources, especially financial resources, available to us.

And while Mr Sterling welcomed the prospect of legislation to “give greater clarity and certainty to decisions takes by the Northern Ireland Civil Service”, he said:

we can never be a substitute for democratically elected and accountable ministers. Great care will need to be taken so that any new arrangements which may be put in place, no matter how temporary, do not compromise the impartiality of the civil service. We cannot afford to have our integrity called into question when we are called to serve a new executive.35

1.7 Public appointments In the House on 6 September, the Secretary of State also promised to bring forward legislation to enable key public appointments to be made in Northern Ireland, as set out in her written statement on 18 July 2018.

In that statement, Ms Bradley said the legislation would allow for certain specified appointments normally made by Northern Ireland Ministers to be made by the relevant UK Minister, either the Secretary of State or Lord Chancellor:

Currently, I am of the view that the appointments specified in the legislation would address the most pressing appointments held up by the lack of Northern Ireland Ministers, including the Northern Ireland Policing Board, the Northern Ireland Judicial Appointments Commission and the Probation Board for Northern Ireland. Further consideration is being given to the ongoing ability of Northern Ireland departments to make appointments already conferred on them in legislation. The legislation would also need to address those appointments to key UK Government sponsored bodies that cannot be made as they require consultation with Northern Ireland Ministers, such as the Chair of the Disclosure and Barring Service.

Ms Bradley added that any such legislation would only apply in the absence of devolved institutions, with responsibility for appointments in Northern Ireland returning to Belfast as soon as a new Executive was in place.36

Where appointment functions are conferred on Northern Ireland Ministers, they cannot be exercised while there are no Northern Ireland Ministers in post.

35 Press Association, “Beefed-up powers for NI civil servants ‘must not undermine

impartiality’”, 17 September 2018. 36 Northern Ireland Office, “Written Ministerial Statement – Northern Ireland:

Appointments”, 18 July 2018.

13 Commons Library Briefing, 18 October 2018

1.8 Other issues: external facilitation Although it does not form part of the Bill, the Secretary of State said in her September statement that she would:

engage in further discussions with the parties and the Irish Government in accordance with the three-stranded approach with the intention of establishing a basis for moving into more formal political dialogue that leads to a restoration of the institutions.

Ms Bradley said she would seek views from political parties in Northern Ireland:

on when and how external facilitation could play a constructive role in the next round of talks. No agreement can ever be imposed from outside Northern Ireland. It must be reached by those closest to the issues, those who have been elected to represent the people of Northern Ireland.37

This followed calls from the SDLP and Alliance for an independent mediator as a way of breaking the deadlock. The Irish Government had suggested that a July meeting of the British-Irish Intergovernmental Conference might be used as a means of facilitating restoration of devolved institutions in Northern Ireland, although this was rejected by the UK Government and the DUP.38

Following talks at Stormont on 10 September 2018, the deputy leader of the Alliance, Stephen Farry, said:

There is a real essential requirement to appoint a mediator to work between the parties; that in itself is not going to crack it but it will make a world of difference in terms of the dynamics and avoid people wriggling away from their responsibilities.39

But speaking after a meeting with the Prime Minister in London two days later, DUP leader Arlene Foster said the UK Government should not “sub-contract” the process of appointing a talks chairperson. She told reporters:

there is a role for facilitation but we believe the British government must not sub-contract their role. Because under the Belfast Agreement, and until the people of Northern Ireland decide otherwise, the UK government is in charge of Northern Ireland.40

1.9 Reactions to the draft Bill Political parties and the media in Northern Ireland were given details of a draft version of the Bill on Monday 8 October 2018, the same day the Secretary of State for Northern Ireland met the DUP, Sinn Féin, SDLP, Ulster Unionists and Alliance amid efforts to begin another round of talks.

37 HC Deb 06 September 2018 vol 646 c348 38 See Commons Library Briefing Paper CBP8371, Intergovernmental relations in the

United Kingdom, 25 July 2018, p13. 39 Belfast Telegraph, “No end to Stormont deadlock in sight as parties meet Secretary

of State”, 10 September 2018. 40 BBC News online, “Arlene Foster warns government over NI talks mediator”, 12

September 2018.

14 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19

BBC Northern Ireland’s political editor Mark Devenport said the:

government's intention is to turn the clock back to the situation before environmentalists took a successful legal challenge against the Stormont Infrastructure department, overturning a decision to approve an incinerator in County Antrim. However critics of the draft bill believe the wording of the suggested guidance could still leave the civil service open to further judicial reviews.

Lord Empey, an Ulster Unionist peer, was quoted as calling the draft Bill “a smokescreen for failure”.41

Others feared the Bill would not prevent further judicial reviews. Following his meeting with the Secretary of State, Ulster Unionist MLA Steve Aiken said:

[The Bill] will last as long as there is a High Court judgment against it, it is an opportunity for every lawyer in Northern Ireland to try to get a judicial review against it. It is not a way to go forward, the way to go forward is get all the parties back together, get the talks process moving and get on with it.

Deputy DUP leader Nigel Dodds also expressed concern:

It does not provide sufficient certainty about decision-making. It does not provide proper accountability […] We cannot have a situation where decisions are either deferred interminably or not taken, or the wrong decision has been taken, whilst those decisions have been taken for the rest of the UK.

Sinn Féin deputy leader Michelle O'Neill said she understood the need for decision making but added that “it has to be under strict guidance and it has to be under limited circumstances”.42

41 Mark Devenport & Jayne McCormack, “Stormont: Draft bill to enhance civil servants'

power”, BBC News online, 8 October 2018. 42 Michael McHugh & Laren Harte, “Northern Ireland parties criticise Bradley’s

Stormont plan”, Belfast Telegraph, 9 October 2018.

15 Commons Library Briefing, 18 October 2018

2. The Bill The broad aim of the Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19 is to:

Facilitate the formation of an Executive in Northern Ireland by extending the time for making Ministerial appointments following the election of the Northern Ireland Assembly on 2 March 2017; and to make provision about the exercise of governmental functions in, or in relation to, Northern Ireland in the absence of Northern Ireland Ministers.43

Specifically, the Explanatory Notes say the Bill would:

• Extend the period provided in the Northern Ireland Act 1998 for Northern Ireland Ministers to be appointed until the 26 March 2019 with the possibility to extend that period for up to 5 months with the agreement of Parliament,

• Clarify that a senior officer of a Northern Ireland department is not prevented from exercising a function of the department during the period for forming an Executive if they are satisfied that it is in the public interest to do so,

• Require the Secretary of State to provide guidance to Northern Ireland Departments about the exercise of those functions,

• Enable the Secretary of State and the Lord Chancellor to exercise appointment functions normally exercised by Northern Ireland Ministers in relation to specified offices, and enable by regulations further such functions to be exercised by UK Ministers,

• Replace the requirement for UK Ministers to consult, or obtain the approval of, Northern Ireland Ministers or the Executive Committee before exercising appointment functions with a requirement to consult the relevant Northern Ireland department, and

• Enable the Secretary of State to exercise any appointment function of a Northern Ireland Minister that is exercisable jointly with other persons who include the Secretary of State, following consultation with the relevant Northern Ireland department.44

The Bill’s Explanatory Notes refer to it as “part of a package of measures aimed at restoring the devolved power-sharing Executive and Assembly and ensuring good governance and delivery of public services in Northern Ireland”.45

The Bill itself has three main elements:

1 Executive formation

43 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19, long

title 44 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19,

Explanatory Notes, p. 2 45 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19,

Explanatory Notes, p. 3

16 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19

2 Exercise of departmental functions during period for Executive formation

3 Exercise of appointment functions during the period while no Executive

The Government’s intention is for all House of Commons stages of the Bill to be taken on Wednesday 24 October 2018.46 It believes this is necessary, according to the Explanatory Notes, to create an “environment in which political dialogue can be re-established” in Northern Ireland, i.e. the restoration of devolved institutions.47

Executive formation Clause 1(1) of the Bill extends the statutory time limit for the appointment of Northern Ireland Ministers up to 26 March 2019. Clause 1(2) applies (1) retrospectively (from 2 March 2017); Clause 1(3) allows for an election earlier than the date at which these provisions expire, and Clause 1(4) removes the previous legal provision to extend the period for Executive formation.48

Clause 1(5) acts as a “sunset clause”, clarifying that this extension ends (a) when all Northern Ireland Ministerial offices are next filled, (b) when the period in 16A(3) of the Northern Ireland Act 1998 as modified by Clause 1(1) ends, or (c) “when the Assembly elected on 2 March 2017 is dissolved”, whichever of these dates comes first.

Clause 2(2) provides the possibility to further extend the period in Clause 1(1) for up to five months, provided there is agreement from Parliament. Clause 2(2) states than an extension may “only be used once”. Sub-clauses 2(4) and 2(5) specify that the Secretary of State may make regulations after parliamentary approval, or make them before obtaining parliamentary approval. In the latter case, if Parliament does not grant approval, the regulations cease to have effect, from either 26 March 2019 or when the regulations are not approved, whichever is the later.

Exercise of departmental functions Clause 3(1) of the Bill makes provision for the exercise of Northern Ireland departmental powers during the period in which an Executive does not exist. In particular, it clarifies that a senior officer of a Northern Ireland department will not be prevented from exercising a function of that department if he or she is satisfied it is in the public interest to do so.

Clause 3(2) requires the Secretary of State to provide guidance to Northern Ireland departments about the exercise of functions. Before doing so, the Secretary of State must have regard to any representations from members of the Assembly, under clause 3 (9). Clause 3(3) states

46 See Commons Library Briefing Paper SN04974, Expedited legislation: Government

Bills receiving their Second and Third Reading on the same day in the House of Commons, 2 May 2017, for previous examples of fast-tracked Bills.

47 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19, Explanatory Notes, p. 7

48 Section 1(1) of the Northern Ireland (Ministerial Appointments and Regional Rates) Act 2017.

17 Commons Library Briefing, 18 October 2018

that senior officers “must have regard to that guidance”. The Explanatory Notes state that the guidance:

will not identify or direct specific decisions but will set out principles to be taken into account when deciding whether or not it is in the public interest to exercise a function.49

“Senior officer” is defined in the Departments (Northern Ireland) Order 1999 as:

a person who is employed in that department and who is a member of the Northern Ireland senior civil service; or a member of the Northern Ireland civil service designated by the department as a senior officer for the purposes of that Order.50

Clause 3(4) also makes retrospective provision in respect of the exercise of functions since 2 March 2017, when Ministers ceased to be in place.

Clause 3 (5) makes explicit that the fact that the Executive had not discussed a particular matter would not prevent senior officers exercising a function related to it. Clause 3 (6) provides that Clause 3 would not affect existing legal proceedings: however, after the end of such proceedings, senior officers would be able to re-take relevant decisions in accordance with the Bill.

Exercise of appointment functions Clause 4(1) enables the appointment functions of Northern Ireland Ministers to be exercised by the relevant UK Minister in the absence of an Executive.

Clause 4(2) lists the “specified office” and “relevant” Minister (in parenthesis):

• Member of the Northern Ireland Judicial Appointments Commission (Lord Chancellor)

• Member of the Northern Ireland Policing Board (Secretary of State for Northern Ireland)

• Member of the Police Service of Northern Ireland above the rank of chief superintendent (Secretary of State for Northern Ireland)

• Member, chair or deputy chair of the Probation Board for Northern Ireland (Secretary of State for Northern Ireland)

• Police Ombudsman for Northern Ireland (Secretary of State for Northern Ireland)51

The Explanatory Notes refer to these as “the most urgent cases”, where the making of an appointment is:

necessary to maintain good governance and public confidence in the institutions in Northern Ireland, particularly focusing on the sensitive area of policing and justice.52

49 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19,

Explanatory Notes, p. 4 50 See the Departments (Northern Ireland) Order 1999 (SI 1999/283) 51 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19, clause

4 (2) 52 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19,

Explanatory Notes, p. 4

18 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19

Examples of ways in which delays in making certain appointments are creating problems are also provided in the Explanatory Notes.

Clause 4(3) allows the Secretary of State to “add entries” to the table in Clause 4(2) by statutory instruments.

Clause 4(5) provides that a UK Minister must consult a “relevant Northern Ireland department” before making any of the appointments set out in clause 4.

Clause 5 replaces any duty on UK Ministers to “consult, or obtain the approval of” a Northern Ireland Minister or the Executive before making a public appointment with “a duty to consult a relevant Northern Ireland department” during the period in which there is no Executive.

The Explanatory Notes observe that in the absence of this Clause, there would be “a risk to the delivery of UK-wide services”, for example recruiting a new Chair of the Disclosure and Barring Service, which expires in November 2018 and requires consultation with a Northern Ireland Minister.53

Similarly, Clause 6(1) allows the Secretary of State for Northern Ireland to exercise “any appointment function of a Northern Ireland Minister that is exercisable jointly with one or more other persons who include the Secretary of State”.

Clause 6(2) requires the Secretary of State to “consult a relevant Northern Ireland department” before making an appointment under Clause 6(1).

Clause 7(1) is an interpretation clause. It also includes a “sunset clause” covering the appointment functions in Clauses 5 and 6, making it clear that “the period while there is no Executive” means the period (a) “beginning when this Act is passed” and (b) “ending on the next occasion when the offices of all the Northern Ireland Ministers are filled”.

Clause 8 sets out the territorial extent of the Bill, as distinct from its application. The Bill extends to England and Wales, Scotland and Northern Ireland but, as the Explanatory Notes make clear, Clauses 1-4 apply to Northern Ireland only, and Clauses 5-10 UK-wide.54

Clause 9 states that the Act will come into force on the day it receives Royal Assent, while Clause 10 provides the short title.

53 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19,

Explanatory Notes, p. 7 54 Northern Ireland (Executive Formation and Exercise of Functions) Bill 2017-19,

Explanatory Notes, p. 16

BRIEFING PAPER Number 08418 18 October 2018

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