Section 9: Department with policing and justice functions: nomination etc of Ministers

63.     Section 9 gives effect to Schedule 6 to the Act. Schedule 6 amends Schedule 2 to the Northern Ireland (Miscellaneous Provisions) Act 2006, which itself inserts new Schedule 4A (department with policing and justice functions) into the Northern Ireland Act 1998. New Schedule 4A establishes alternative departmental structures for any new department with policing and justice functions, and the amendments made by Schedule 6 to the Act make further provision about ministerial appointments to the new department.

Committees

Section 10: Statutory committee for Office of First Minister and deputy First Minister

64.     Section 10 makes amendments to section 29 of the 1998 Act to provide for the establishment of a statutory committee to advise and assist the First and deputy First Ministers in the formulation of policies in relation to their responsibilities as the Ministers jointly in charge of the Office of the First Minister and deputy First Minister. The effect of this section is to put the former non-statutory "Committee of the Centre", which was in operation prior to the suspension of the Northern Ireland Assembly, on a statutory footing.

Section 11: Committee to review functioning of Assembly and Executive Committee

65.     Section 11 provides for a Committee to review the functioning of the Assembly and the Executive Committee.

66.     Subsection (1) inserts new sections 29A and 29B into the 1998 Act to require the Assembly to establish a Committee to review the functioning of the Assembly and the Executive Committee. The detailed practical arrangements for the committee's operation are a matter for standing orders (new section 29A(1)), which are required to provide for the committee to make reports to the Assembly and to the Executive Committee (new section 29A(2)).

67.     New section 29A(3) requires the new committee to make a report on the operation of the provisions of Parts 3 and 4 of the 1998 Act (which deal respectively with the devolved executive authorities and the Assembly) to the Secretary of State, the Assembly and the Executive Committee. The report might, for example, consider whether changes should be made to the provisions for appointing Ministers, the provisions dealing with the exclusion of individuals and parties from holding Ministerial offices, and the arrangements for dealing with the calculation of cross-community support within the Assembly.

68.     New section 29B(1) provides that standing orders must require the committee to consider the operation of the new arrangements for appointing Ministers (provided for in the new sections 16A to 16C, inserted by section 8) and whether, in particular, these should continue in operation beyond the Assembly election in 2011 or whether the arrangements should revert to those set out in section 16 of the 1998 Act. The procedure to be followed if it recommends the latter is set out in subsections (2) to (5) of section 11. In particular, if the recommendation receives cross-community support in the Assembly, subsection (2) requires the Secretary of State to bring forward an order to amend the 1998 Act and any other enactment so far as necessary to ensure that the procedure reverts to the section 16 one.

NSMC and BIC

Section 12: North-South Ministerial Council and British-Irish Council

69.     Section 12 substitutes new sections 52A, 52B and 52C for section 52 of the 1998 Act, which deals with the North-South Ministerial Council and the British-Irish Council.

70.     New section 52A(1) places a duty on the First and deputy First Ministers to ensure that the Executive Committee and Assembly are made aware of the date and agenda of forthcoming meetings of the NSMC or BIC and of the name of the Ministers or junior Ministers who are to attend the meeting.

71.     New section 52A(2) provides that a Minister or junior Minister with responsibility for a matter included on the agenda for a meeting of either the NSMC or BIC shall be entitled to attend and participate in the meeting. He may also, under new section 52A(3), nominate another Minister or junior Minister to attend in his place. The responsible Minister or junior Minister is required (under new section 52A(4) and (6)) to notify the First and deputy First Ministers as to whether he intends to attend the meeting or to nominate someone to attend in his place, or neither. Where the First and deputy First Ministers haven't received notification under the section that the responsible Minister or junior Minister or a substitute will attend the meeting, new section 52A(5) places a duty on the First and deputy First Ministers to nominate someone to attend. The First and deputy First Ministers are also obliged, as necessary, to make nominations of other Ministers or junior Ministers to attend to ensure cross-community participation in the meeting (see section 52A(7)).

72.     New section 52A(8) and (9) provides that when a matter for discussion at either Council is one that ought to be considered by the Executive Committee (by virtue of section 20(3) or new section 20(4) of the 1998 Act), the First Minister and deputy First Minister may attend the meeting, in addition to the Minister or junior Minister with responsibility for the matter or a Minister or junior Minister nominated under new section 52A(3) or (5).

73.     New section 52B(1) and (2) requires Ministers and junior Ministers to participate in NSMC and BIC meetings they are attending. New section 52B(3) requires the responsible Minister or junior Minister to ensure that any other Minister or junior Minister attending an NSMC or BIC meeting in his place has access to whatever information is necessary to enable that person to participate fully in the meeting. However, if the responsible Minister or junior Minister has provided insufficient information to enable the nominated Minister or junior Minister's full participation, new section 52B(4) makes provision for the First Minister and deputy First Minister acting jointly to request the information. The responsible Minister or junior Minister is obliged to comply with that request.

74.     New section 52B(5) authorises a person who has been nominated to attend a meeting on behalf of another Minister or junior Minister to enter into arrangements and agreements on his behalf. New section 52B(6) provides that any Minister or junior Minister attending an NSMC or BIC meeting must act in accordance with any relevant decisions of the Assembly or Executive Committee, taken within their existing competence.

75.     New section 52C makes supplementary provision for the operation of new sections 52A and 52B, including providing for the First and deputy First Ministers acting jointly to determine which Minister or junior Minister has responsibility for a matter in the event of there being a dispute. It also places a duty on Ministers and junior Ministers who attend meetings of either Council to make an oral report (unless standing orders authorise it to be made in writing) to both the Assembly and Executive Committee.

Miscellaneous

Section 13: Community designation

76.     Section 13 amends section 4 of the 1998 Act to require standing orders of the Assembly to provide that an MLA may only change his community designation of "Nationalist", "Unionist" or "Other" between elections if he changes his political party affiliation.

Section 14: Power of Executive Committee to call for witnesses and documents

77.     Section 14 inserts a new section 28C into the 1998 Act to give the Executive Committee the power to call for witnesses and documents. The section applies the provisions of section 44 of the 1998 Act (which provides the Assembly and its Committees with the power to compel witnesses and documents) to the Executive Committee with certain modifications. The power is exercisable in relation to senior civil servants working in Northern Ireland Departments where a matter falls within the Executive's functions under section 20(3) and (4) of the 1998 Act.

Section 15: Strategies in relation to Irish language and Ulster Scots language etc

78.     Section 15 of the Act inserts a new section 28D into the 1998 Act. Section 28D places a duty on the incoming Executive Committee to adopt a strategy relating to the enhancement and protection of the development of the Irish language and also to adopt a strategy relating to the enhancement and development of the Ulster Scots language, heritage and culture.

79.     Subsection (3) of new section 28D of the 1998 Act provides for the Executive Committee to review and revise these strategies.

Section 16: Strategy in relation to poverty, social exclusion etc

80.     Section 16 inserts a new section 28E into the 1998 Act. The new section places a duty on the Executive Committee to adopt a strategy for tackling poverty and social exclusion and patterns of deprivation; and for that strategy to be based on objective need.

81.     Subsection (2) of new section 28E places a duty on the Executive Committee to keep the strategy under review, and gives the Executive Committee a power to revise the strategy or adopt a new strategy.

Section 17: Vacancy in the Assembly

82.     Section 17 inserts a new paragraph 5 into Schedule 6 to the 1998 Act. This enables the Assembly to make standing orders preserving the exercise of the right to vote in the Assembly in cases where a vacancy in membership would otherwise prevent this right from being exercised. Paragraph 9(6) of Schedule 1 enables equivalent standing orders to be made for the Transitional Assembly. The standing orders could, for example, provide for voting in the Transitional Assembly to take account of any seats won by a party, but subsequently vacated and not filled as a result of section 3(2) and (3).

Section 18: Report on progress towards devolution of policing and justice matters

83.     Section 18 places an obligation on the Assembly to provide a report to the Secretary of State before 27 March 2008 on its consideration of policing and justice matters. The report is to address:

• the preparations the Assembly has made, and intends to make, for the devolution of such matters;

• which of the matters the Assembly are likely to seek to have devolved; and

• whether a request is likely to be made before 1 May 2008 that responsibility for such matters should be devolved.

The Secretary of State must lay the report before Parliament.

84.     Subsections (4) to (6) contain technical amendments to the definition of a "devolved policing and justice matter". They remove the adjective "devolved" from the definitions contained in sections 4(2A), 4(6) and 21A(8)(b) of the 1998 Act (inserted by the Northern Ireland (Miscellaneous Provisions) Act 2006) to clarify that they remain reserved until devolved.

85.     The section does not affect any of the safeguards on the transfer of responsibility set out in section 4 of the 1998 Act, as amended by the Northern Ireland (Miscellaneous Provisions) Act 2006. It remains the case that the First Minister and deputy First Minister, acting jointly, must table a motion for a resolution of the Assembly that policing and justice matters be devolved; the Assembly must so resolve with cross-community support; the Secretary of State must concur and lay a draft order before Parliament; and Parliament must approve that order.

Section 19: Minor and consequential amendments

86.     Section 19 gives effect to Schedule 7 which makes minor and consequential amendments relating to Part 2 of the Act.

PART 3: OTHER AMENDMENTS

Policing

Section 20: District policing partnerships

87.     Section 20 gives effect to Schedules 8 and 9 which make provision in relation to district policing partnerships, including Belfast sub-groups.

Education

Section 21: Amendment of Education (Northern Ireland) Order 2006 etc

88.     Section 21 amends the Education (Northern Ireland) Order 2006 in relation to the abolition of academic selection.

89.     Currently, the Education (Northern Ireland) Order 2006 includes provisions which prohibit the use of academic ability as an admissions criterion but defers the provisions' commencement and makes them subject to an affirmative resolution of the Assembly, provided the Assembly is restored by 24 November. Subsection (1) of section 21 further defers the commencement of the provisions, in line with the St Andrews Agreement timetable.

90.     In the event of the repeal of the Northern Ireland Act 2000 under Schedule 4 to this Act, commencement of the provisions prohibiting academic selection will be subject to an affirmative resolution of the Assembly. However if Schedule 3 to this Act is invoked, the provisions will come into operation on the date on which Schedule 3 comes into force. In either case the prohibition will take effect only in relation to admissions on or after 31 July 2010.

91.     Section 21 also provides that, if the Northern Ireland Act 2000 is repealed under Schedule 4, schools admissions regulations may make different provision for different descriptions of schools. This will ensure that a restored Assembly's options to agree new admissions arrangements are not constrained by a requirement for all types of schools to use the same types of admissions criteria.

PART 4: SUPPLEMENTAL

Section 22: Repeal of the 2006 Act

92.     Section 22 repeals the Northern Ireland Act 2006 in its entirety. Without its repeal, the provisions of Schedule 3 to that Act would have come into immediate effect on 25 November 2006, with the result that the next election of the Northern Ireland Assembly would have been postponed indefinitely.

Section 23: Power to make consequential provision etc

93.     Section 23 provides for the Secretary of State to make by order any supplementary, incidental or consequential provision and any transitional or saving provision that may be needed as a result of the Act. The power is mainly intended to be used to make any changes that may be needed in consequence of the coming into force of Schedule 2 or 3, and for the transitional or savings provision that might be required as a result of the repeal of the 2000 Act.

Section 24: Parliamentary procedure for orders under section 23

94.     Section 24 provides for the affirmative resolution procedure, with the possibility of expedition, to apply to instruments made under section 23 if they contain amendments or repeals of Acts or Northern Ireland legislation. Otherwise, the negative resolution procedure applies.

SCHEDULE 1: THE TRANSITIONAL ASSEMBLY

95.     Schedule 1 makes provision relating to the operation of the Transitional Assembly. Paragraph 1(1) provides that the Presiding Officer will have the authority to specify when and where the Transitional Assembly will meet and that the Assembly must meet on 24 November 2006. Paragraph 1(2) provides that the Secretary of State may instead direct the Transitional Assembly to meet at a certain time and place. It is envisaged that paragraph 1(2) will be used only where it appears necessary to ensure the successful operation of the Transitional Assembly.

96.     Paragraph 2(1) provides that proceedings in the Transitional Assembly will be conducted in accordance with the standing orders (as defined in paragraph 9). Paragraph 2(2) provides that the Secretary of State may direct that proceedings are conducted differently; again it is envisaged that this provision will only be used where necessary to ensure the successful operation of the Transitional Assembly.

97.     Paragraph 3 provides for proceedings in the Transitional Assembly to include the nominations for the offices of First and deputy First Ministers of the Northern Ireland Assembly. Both Ministers would take up office when the Northern Ireland Assembly is restored. Paragraph 3(2) makes clear that the nominations may still take place despite the Northern Ireland Assembly being suspended under the 2000 Act.

98.     Paragraph 4 requires the Transitional Assembly to prepare a draft Ministerial Code before 24 March 2007. It specifies that any draft Code prepared under this paragraph must comply with the requirements set out in subsections (5) to (8) of new section 28A of the 1998 Act and that, if a draft Code has been approved before 24 March 2007 under the process set out in sub-paragraph (3) (that is, with cross-community support) it shall become the statutory Ministerial Code for the Northern Ireland Assembly. Future amendment or replacement of the Code would fall to be made under subsection (3) and (4) of new section 28A of the 1998 Act.

99.     Paragraph 4(5) places a duty on the Secretary of State to prepare a draft Ministerial Code, in the event of failure on the part of the Transitional Assembly to prepare and approve the draft Ministerial Code before 24 March 2007. Any Code thus prepared would become the Ministerial Code required by new section 28A of the 1998 Act, until amended or replaced by a Code under subsection (3) and (4) of that section.

100.     Paragraph 4(6) sets out the requirements of a draft Ministerial Code prepared by the Secretary of State under sub-paragraph (5) and provides that such a Code must, so far as is practicable, be in the form of the former, non-statutory Ministerial Code which applied to members of the Executive Committee of the Northern Ireland Assembly immediately prior to suspension, but subject to any parts of the draft Code approved by cross-community support in the Transitional Assembly prior to 24 March 2007. In addition this Code must comply with the requirements set out in subsections (5) to (8) of section 28A of the 1998 Act. The Secretary of State would have no discretionary powers to include any provision in a draft Code under sub-paragraph (5) other than those mentioned above.

101.     Paragraph 5 requires the Transitional Assembly to prepare draft standing orders for the Northern Ireland Assembly before 24 March 2007. It specifies that if the draft standing orders are approved before that date under the process set out in sub-paragraph (3) (that is, with cross-community support) they shall become standing orders of the Northern Ireland Assembly.

102.     Paragraph 5(4) places a duty on the Secretary of State to prepare draft standing orders, in the event of failure on the part of the Transitional Assembly to prepare and approve draft standing orders before 24 March 2007. The standing orders thus prepared would become the standing orders of the Northern Ireland Assembly, until amended or replaced by the Northern Ireland Assembly under section 41 of the 1998 Act.

103.     Paragraph 5(5) sets out requirements for any draft standing orders prepared by the Secretary of State under sub-paragraph (4). It provides that these standing orders must, so far as is practicable, be in the form of the former standing orders of the Northern Ireland Assembly immediately prior to suspension, but subject to any amendments to the draft standing orders approved by cross-community support in the Transitional Assembly prior to 24 March 2007. In addition the standing orders must comply with the requirements set out in the 1998 Act (as it is to have effect on or after 26 March 2007) and may include other provisions.

104.     Paragraph 6(1) provides that the Transitional Assembly will have a Presiding Officer and no more than three deputy Presiding Officers. Paragraph 6(2) and (3) provides that the Presiding Officer and deputy Presiding Officers of the Transitional Assembly will be those that held those offices in the Assembly established by the Northern Ireland Act 2006 immediately before Schedule 1 came into force.

105.     Paragraph 6(4) provides that the Transitional Assembly may elect a person to fill any vacancy in the office of Presiding Officer or deputy Presiding Officer or replace a current office-holder if members believe that he/she is unable, unfit or unwilling to perform his/her functions. Paragraph 6(5) provides that any such election must be by cross-community vote (as defined in paragraph 11). Paragraph 6(6) provides that the Secretary of State may appoint a Presiding Officer or deputy Presiding Officer if a vacancy has arisen and the Transitional Assembly have not appointed someone to fill the vacancy within two weeks. If the Secretary of State believes that a Presiding Officer or deputy Presiding Officer is unfit, unable or unwilling to perform his/her functions, and the Officer has not been replaced by the Transitional Assembly within two weeks, under sub-paragraph (7) the Secretary of State may appoint a person to replace the Officer.

106.     Paragraph 7 provides that the Secretary of State must ensure the provision of staff, premises and other facilities, with sub-paragraph (2) providing for the cost of this to be met out of the Consolidated Fund of Northern Ireland. Paragraph 8 provides for any statement made by a member for the purposes of the Transitional Assembly to be privileged from action for defamation, unless proved to have been motivated by malice.

107.     Paragraph 9 deals with the standing orders of the Transitional Assembly (as opposed to the draft standing orders for the Northern Ireland Assembly that paragraph 5 provides for). Paragraph 9(2) provides that the initial standing orders shall be determined by the Secretary of State and notified to the Presiding Officer or any deputy Presiding Officer. Paragraph 9(4) provides that the Transitional Assembly may amend or replace them, but cannot do so without cross-community support (as defined in paragraph 11). Paragraph 9(3) provides that the Secretary of State may add to or amend the standing orders but cannot do so in a manner inconsistent with any amendment made by the Transitional Assembly under paragraph 9(4). Paragraph 9(5) provides that the standing orders may include provisions similar to those of the Northern Ireland Assembly (under section 41 of the 1998 Act) or any direction made by the Secretary of State under paragraph 4 of Schedule 1 to the Northern Ireland Act 2006.

108.     Paragraph 9(6) provides that the standing orders may include provision under paragraph 5 of Schedule 6 to the 1998 Act (as amended by section 17 of the Act) which deals with any vacancy in the Assembly.

109.     Paragraph 9(7) also makes clear that any provision made by the standing orders for the purposes of nominating a First and deputy First Minister under paragraph 3, may include provision which is similar to that included in sections 16A to 16C of the 1998 Act (as inserted by section 8 of the Act).

110.     Paragraph 9(8) provides that the standing orders may cater for any additional nominations that are made under paragraph 3 of Schedule 1 if a nomination made under paragraph 3 ceases to have effect.

111.     Paragraph 10(1) provides that persons who are members of the Assembly established by the 2006 Act, immediately before Schedule 1 comes into force, will be deemed to have signed the roll of membership in the Transitional Assembly. Similarly, paragraph 10(2) provides that those same members will be deemed to have designated themselves Nationalist, Unionist or Other in the Transitional Assembly in line with their previous designation in the Assembly established by the Northern Ireland Act 2006.

112.     Paragraph 11 provides the definition of "cross-community support" referred to elsewhere in the Schedule.

SCHEDULE 2: RESTORATION OF DEVOLVED GOVERNMENT ON 26 MARCH 2007

113.     Schedule 2 will come into force automatically on 26 March 2007, unless the Secretary of State has brought Schedule 3 into force before that date (see section 2). Paragraph 2(1) ensures that when a restoration order under section 2(2) comes into force, those who previously held Ministerial office (and certain other offices) at the time of suspension will not resume that office. Paragraph 2(2) and (3) makes clear that those nominated under paragraph 3 of Schedule 1 will hold the offices of First Minister and deputy First Minister when the restoration order comes into force. However, paragraph 2(4) is clear that those Ministers cannot take office until they have affirmed the pledge of office. Paragraph 2(5) requires the other Ministerial offices of the Northern Ireland Assembly to be filled by applying section 18(2) to (6) of the 1998 Act (i.e. the d'Hondt mechanism) on 26 March 2007. When d'Hondt is run, paragraph 2(6) of the Schedule will require that it be the first day on which the Transitional Assembly meets following the election that is used to determine the number of Assembly seats held by members of the parties.

114.     Paragraph 3 provides that the Presiding Officer and deputy Presiding Officers of the Transitional Assembly immediately before restoration shall be deemed to have been elected Presiding Officer and deputy Presiding Officers of the Northern Ireland Assembly (under section 39(1) and (2) of the 1998 Act). This means that the Northern Ireland Assembly need not elect a Presiding Officer or deputy Presiding Officers as its first business, but may choose to replace them at any point.

115.     Paragraph 4(1) provides that the restoration order under section 2(2) may make any other necessary provision required in order to carry forward the preparations for devolution undertaken by the Transitional Assembly members, and treat them as having been undertaken by the Northern Ireland Assembly. For example, it could be used to avoid the need for members to sign the Roll again. Paragraph 4(2) disapplies section 2(3) of the 2000 Act, which provides that the Secretary of State must take account of a review conducted under the 2000 Act. This is to ensure that the restoration order can be made quickly.

116.     Paragraphs 5 and 6 provide for modifications to how "d'Hondt" is run for the first time after 26 March 2007, under both section 29(3) of the 1998 Act (relating to Assembly Committees) and paragraph 7(7) of Schedule 1 to the Police (Northern Ireland) Act 2000 (relating to political members of the Northern Ireland Policing Board). In both Acts, the meaning of S is changed so that the day when the Assembly is considered to have first met is deemed to be the first day that the Transitional Assembly meets after the 7 March election.

117.     Paragraph 7 provides that section 1(1) and (2) and Schedule 1 shall be repealed when Schedule 2 comes into force. This will ensure that the Transitional Assembly will cease to exist on 26 March 2007.