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Explanatory Notes to Northern Ireland (Miscellaneous Provisions) Act 2006
2006 Chapter 33 |
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These Notes refer to the Northern Ireland (Miscellaneous Provisions) Act 2006 (c.33) which received Royal Assent on 25th July 2006 NORTHERN IRELAND (MISCELLANEOUS PROVISIONS) ACT 2006EXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Northern Ireland (Miscellaneous Provisions) Act 2006 which received Royal Assent on 25th July 2006. They have been prepared by the Northern Ireland Office in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given. SUMMARY 3. The Act makes provision in relation to the following:
OVERVIEW Parts 1 and 2: Registration of electors and the Chief Electoral Officer 4. The purpose of these Parts of the Act is to give effect to the proposals put forward in a consultation paper published by the Northern Ireland Office on 5th August 2005 entitled Electoral registration in Northern Ireland: Proposals on the future of electoral registration in Northern Ireland. 5. The Government published its response to the results of this consultation exercise on 24th January 2006. 6. The new electoral registration scheme replaces the annual Northern Ireland canvass with a system of more extensive continuous updating of the Northern Ireland electoral registers ("the register") in order to enhance comprehensiveness and remove the need for individual electors to re-register every year. It is intended to combat a downward drift in numbers registered and the possibilities for fraud. It builds on the measures introduced by the Electoral Fraud (Northern Ireland) Act 2002 (c.13). 7. The Act also amends the statutory terms and conditions of the Chief Electoral Officer for Northern Ireland, to bring them into line with terms that are now standard for similar appointments. It restricts the office holder's tenure, so that a CEO is appointed for no more than five years at a time, and may hold office for no more than ten years in total. It also provides clear criteria for dismissal. Part 3: Donations for political purposes 8. The purpose of this Part is to give effect to the proposals put forward in a consultation paper entitled Political donations in Northern Ireland: Proposals on the future of donations to political parties in Northern Ireland. The paper was published by the Northern Ireland Office on 5th August 2005 and the Government published its response to the results of consultation on 24th January 2006. 9. The proposed measures on political donations aim to exert more effective control over donations to political parties in Northern Ireland, by aligning the rules for Northern Ireland more closely with those that apply in the rest of the UK under the Political Parties, Elections and Referendums Act 2000 (c.41) ("the 2000 Act"). They are also intended to introduce more transparency into the donations process. 10. From 1st November 2007 the measures will require Northern Ireland parties to submit donations reports to the Electoral Commission. However, to guard against intimidation of legitimate donors, reports submitted before the end of October 2010 (or later, if this period is extended with the approval of Parliament) will remain confidential. The measures will also seek to limit donations from overseas to Northern Ireland parties. But in doing this they will recognise the special position of Ireland in Northern Ireland's political culture by allowing donations from Irish citizens and organisations if they fulfil criteria which will be set out later, in secondary legislation. Part 4: Devolution of policing and justice etc. 11. In the Belfast Agreement of 1998 the British Government said that in principle, and following consultation with the Irish Government, it would be ready to devolve responsibility for policing and justice issues if the Northern Ireland political parties agreed. The 2003 Joint Declaration by the British and Irish Governments ("the Joint Declaration") undertook to address and agree the practicalities of the proposed devolution, with a view to introducing the necessary legislation in the Westminster Parliament at the earliest opportunity. 12. Consequently, responsibility for those policing, justice and associated functions which are designated as "reserved matters" under the Northern Ireland Act 1998 (c.47) ("the 1998 Act") will be transferred, when circumstances are right, to the Northern Ireland Assembly ("the Assembly") and Executive. The British Government and UK Parliament will retain responsibility for "excepted matters" such as defence of the realm, the armed forces and national security. 13. This Act does not itself initiate the devolution process. That will not happen until the Northern Ireland parties have been able to concur on institutional models for devolved functions which the British Government agrees are robust, workable and sustainable. Also, for devolution to occur, other conditions will need to be satisfied. In particular, the Assembly will need to be restored, and a resolution requesting devolution will need to be passed by the Assembly with the support of a majority of the designated Nationalists voting and a majority of the designated Unionists voting (see section 16 of the Act). 14. To help enable the eventual devolution to be carried out by order, without the need for further primary legislation, the Act makes provision allowing the Assembly to put in place various arrangements for Ministerial appointments to a new policing and justice department. Part 5: Miscellaneous Arms decommissioning: extension of amnesty period 15. The Act enables the end date for the amnesty period under the Northern Ireland Arms Decommissioning Act 1997 (c.7) to be changed so as to be on or before 27th February 2010 (instead of on or before 27th February 2007). The amnesty period is the period during which people are immune from prosecution for certain offences (set out in the Schedule to the 1997 Act) if they are acting in accordance with a decommissioning scheme. Northern Ireland loans limit 16. The Act amends the Northern Ireland (Loans) Act 1975 (c.83) by increasing from £2000 million to £3000 million the aggregate limit on specified loans for capital purposes to the Northern Ireland Consolidated Fund. It also allows the Secretary of State, by order and with the consent of the Treasury, to further increase the limit by an amount not exceeding £500 million. It removes the limitation on the number of times such an increase may take place but each increase will need to be approved by the Treasury. Single wholesale electricity market 17. The Act provides that an Order in Council may give effect to any agreement or arrangement between the British and Irish governments on the creation or operation of a single wholesale electricity market in Northern Ireland and Ireland. These proposals for a single wholesale electricity market were developed under the All-Island Energy Market Development Framework, agreed by the British and Irish Governments in 2004. The aim of the proposals is to enhance Northern Ireland's security and diversity of supply; provide greater competition and investment opportunities from a stable market with transparent and equitable trading arrangements; and encourage market efficiencies and economies of scale. Financial assistance for energy purposes 18. The Act amends the Energy (Northern Ireland) Order 2003 (S.I. 2003/419 (N.I. 6)) by extending the legislative powers covering the provision of financial assistance to energy projects. Existing Article 61 of that Order, which is focused on the provision of grants to the electricity and gas industries, is being replaced to enable assistance to be given to a wider range of energy-related projects and, in particular, renewable energy. The extended provision will allow use of the new £59 million Environment and Renewable Energy Fund which has been established to support renewable energy projects over the next two years. It will also address proposals published on 30th June 2004 as Energy: A Strategic Framework for Northern Ireland, and specifically the objective of enhancing sustainable energy supply and consumption. Sustainable development 19. The Act imposes a statutory duty on all Northern Ireland government departments and district councils to act in the manner which they consider best contributes to sustainable development. It also gives to the Office of the First Minister and deputy First Minister a power to extend the duty, by order, to other public authorities. Extension of provisions of SOCAP 2005 to Northern Ireland 20. The Act extends the provisions on investigatory powers in Chapter 1 of Part 2 of the Serious Organised Crime and Police Act 2005 (c.15) to Northern Ireland. It also makes the Director of Public Prosecutions for Northern Ireland an "Investigating Authority" for the purpose of those provisions. Responsibilities in relation to the health and safety etc. of police 21. The Act provides a person who holds the office of Chief Constable of the Police Service of Northern Ireland ("PSNI") with "corporation sole" status, and amends relevant health and safety and other legislation so that any prosecution under that legislation will ordinarily be brought against the Chief Constable in his capacity as office holder, rather than against him personally. This brings Northern Ireland into line with police forces in Great Britain. Duty to fill judicial vacancies 22. The Act places a duty on the Prime Minister to fill any vacancy in the office of the Lord Chief Justice or Lord Justice of Appeal (both before and after devolution of justice functions). The provision also places a duty on the Lord Chancellor to fill judicial vacancies at High Court level or below. However, these duties will not apply if the Lord Chief Justice of Northern Ireland agrees that a vacancy in an office (except that of Lord Chief Justice) may remain unfilled. TERRITORIAL EXTENT 23. The Act's main impact is on Northern Ireland. However, because many of the enactments on which the Act operates extend to the whole of the UK, as a technical matter much of the Act extends to the whole of the UK. The three exceptions are:
TERRITORIAL APPLICATION: WALES 24. The Act does not have any special effect on Wales and does not affect the National Assembly for Wales. COMMENTARY ON SECTIONS PART 1: REGISTRATION OF ELECTORS Section 1: Power to make provision about anonymous registration 25. Section 10 of the Electoral Administration Act 2006 (c.22) (referred to in these Notes as "EAA") provides for an elector, whose safety would be at risk if he or she were identifiable from the electoral registers, to apply to be registered anonymously. This provision of the EAA does not extend to Northern Ireland. 26. Section 84(1) of the Northern Ireland Act 1998 (c.47) enables provision to be made with respect to elections (but not the franchise) and boundaries in respect of district councils in Northern Ireland by Order in Council. Section 1 of this Act modifies section 84(1) to enable anonymous registration to be introduced in Northern Ireland in respect of district, Assembly, European and Parliamentary elections by such an Order. The anonymous registration provisions must correspond or be similar to provisions already contained in the EAA. 27. Section 1 also contains a power to amend primary and secondary legislation where necessary to give effect to the new Northern Ireland anonymous registration provisions. Such a power is needed because the new provisions will need to differ in part from those contained in the EAA in order to take account of the different registration and anti-fraud measures in Northern Ireland. 28. An Order in Council made by virtue of section 1 can only be made after consultation with the Electoral Commission. It must be laid in draft before, and be approved by, both Houses of Parliament. It has the status of primary legislation for human rights purposes. 29. It is intended that the Order will define the criteria to be applied for eligibility for anonymous registration so that only genuinely vulnerable electors will be eligible. The number of people who will be eligible is not expected to be large. Section 2: Abolition of annual canvass 30. This section amends the Representation of the People Act 1983 (c.2) ("the 1983 Act") so as to remove the legal requirement to conduct an annual canvass in Northern Ireland. The last annual canvass will take place during the autumn of 2006. 31. The Chief Electoral Officer for Northern Ireland, as the registration officer for all constituencies in Northern Ireland, has responsibility for maintaining the electoral register for Northern Ireland. Section 2 inserts a new section 10(1A) into the 1983 Act, which sets out the CEO's duty to conduct periodic canvasses in accordance with new provisions inserted into the 1983 Act by section 3, described below. Section 3: Timing of canvass 32. This section inserts new section 10ZA into the 1983 Act. The new section provides for a canvass to take place in 2010 and every tenth year following 2010. However, the Secretary of State may make an order cancelling the 2010 canvass if the following conditions are met: first, the CEO has made a recommendation by 15th April 2010 against a canvass being conducted in that year; and second, the Secretary of State is satisfied that the public interest does not require a canvass. Both the CEO and the Secretary of State, in making their decisions, must have reference to the registration objectives set out in new provisions inserted by section 4. An order cancelling the 2010 canvass may only be made if it is laid in draft before, and approved by, both Houses of Parliament. 33. The section provides that if no canvass is held under the new provisions by the end of 2015, a canvass must be held in 2016. 34. In intervening years (which are all years other than: 2010; every tenth year after 2010; and, if no canvass is held before the end of 2015, 2016) a canvass may be held provided the following conditions are satisfied. The first condition is that the CEO makes a recommendation to the Secretary of State, by 15th April of that year, in favour of a canvass being conducted for the purpose of meeting the registration objectives. The second condition is that the Secretary of State is satisfied that the public interest requires a canvass. Section 4: The relevant registration objectives 35. Section 4 inserts new section 10ZB into the 1983 Act. This new section sets out the relevant registration objectives. These are the objectives that the CEO must aim to meet in maintaining the electoral register in Northern Ireland. These objectives are to ensure, so far as reasonably practicable, that:
36. The "required information" is an individual's: name; qualifying address; date of birth; national insurance number (or a statement that they do not have one); and signature. However, the section allows for the requirement for a person's signature to be dispensed with in the event that a CORE (co-ordinated on-line record of electors) scheme, allowing for electronic registration of electors across the United Kingdom, is implemented. CORE schemes are provided for by the EAA. Section 5: Publication and alteration of registers 37. This section replaces section 13(1) of the 1983 Act. It retains the current default requirement that a revised and updated register must be published on or before 1st December in a year in which a canvass has been held. For years where no canvass is held in Northern Ireland, it introduces a default requirement that the revised register in Northern Ireland must be published on 1st December. 38. However, whether or not a canvass is held, the Secretary of State has a power to prescribe a later publication date in regulations. 39. In the amendment of section 13 made by this section (and in the amendments made by sections 6 and 7) "prescribed" means prescribed by regulations (see sections 201 and 202 of the 1983 Act). Section 6: Alteration of registers: pending elections 40. Currently, a person may only vote in an election if they appear on the register on the date the nominations for candidates for the election close. This can mean that the effective deadline for registration is many weeks before the poll. Section 6 will allow electors to register closer to the date of the poll. This measure is broadly similar to that in section 11 of the EAA, and will allow electors not on the register to apply in time to meet a new "late registration" deadline. This deadline will be set in regulations made under this section; it is anticipated that it will be set at eleven days before the poll. 41. This later deadline means the CEO will not have sufficient time to make the normal checks on the information provided by the applicant before polling day. In order to ensure this new facility does not increase the risk of fraud the section provides that individuals who apply for "late registration" will have to provide additional material supporting the application and will not be allowed an absent vote. The specific material to be provided will be specified in regulations, but it is intended to be aimed at seeking proof of residence. 42. The CEO must publish a notice specifying any consequent late alterations to the register on the "appropriate publication date", which is defined in section 13B(5) of the 1983 Act (attracted by subsection (13) of the new section 13BA inserted by the section) as "the sixth or fifth day before the date of the poll, as the registration officer may determine". This notice is used by polling officers to verify those entitled to vote and can also be used by political parties for canvassing. 43. The section also provides for alterations to the register as a result of a court decision, or a clerical error following a representation to the CEO, to be made up to a prescribed time on the day of poll (whereas currently the deadline is the fifth day before the poll). The CEO must publish a notice forthwith if any such alterations are made. The deadline for any alterations to correct clerical errors that do not follow a representation made to the CEO remains the fifth day before the poll, and notice of these alterations must be issued on the appropriate publication date. Section 7: Data collection 44. This section amends Schedule 2 to the 1983 Act, which details the types of provision which may be contained in regulations as to registration. It enables regulations to be made that give the CEO the power to obtain information from public authorities to help him to meet the relevant registration objectives. This is intended to help the CEO to track changes to the relevant circumstances of individuals on the electoral register (such as their name and address); to identify people who are not on the register but may be entitled to be; and to track the point at which "attainers" (individuals aged 16 or 17) will become eligible to be registered. The CEO will then approach these individuals to invite them to update their entry, or to register. 45. This section makes clear that data can only be provided to the CEO under the regulations for the purpose of assisting him to meet the relevant registration objectives. 46. There are safeguards on the onward transmission of this data. The regulations may only permit the data to be passed to a third party for the purpose of the registration objectives or criminal or civil proceedings. The section also enables the regulations to make it an offence (punishable on summary conviction by a fine of up to £5000) to disclose this information in breach of the safeguards. PART 2: THE CHIEF ELECTORAL OFFICER Section 8: Tenure 47. This section adjusts the terms of appointment of the CEO. Its provisions state that the appointment can be for a term of up to 5 years and that no person may hold the post for more than 10 years. The section also sets out clear criteria for dismissal in line with similar posts. 48. Subsection (6) deals with the position of an incumbent when the provision comes into force. For the incumbent the five and ten year periods run from the date of commencement of the section, rather than from the date of appointment. Section 9: Annual reports 49. This section imposes a statutory duty on the CEO to prepare and present an annual report to the Secretary of State on how he has discharged his functions in the year to which the report relates. The report will also include an assessment of the extent to which the relevant registration objectives have been met (see section 4 of the Act for the relevant registration objectives). 50. The report must be made by a date to be set by the Secretary of State, and the Secretary of State must lay a copy of the report before Parliament. PART 3: DONATIONS FOR POLITICAL PURPOSES Section 10: Introduction 51. Currently, donations to political parties are regulated by the Political Parties, Elections and Referendums Act 2000 (c.41). Donations to political parties registered in Great Britain or Northern Ireland are regulated under Part 4 of that Act. Under that Part, political parties may only accept donations from permissible donors, and must declare the source of any donation over £5,000 to the Electoral Commission. The effect of the "permissible donor" system is to prohibit overseas donations. The system relies for its effectiveness on transparency of donations to parties. 52. In Northern Ireland there has been concern that donors would not want their details made public because of the potential for intimidation. Therefore, in February 2001 an order was made under Chapter 4 of Part 4 of the 2000 Act providing that, in relation to Northern Ireland political parties, the requirements of Part 4 were to be disapplied for four years. The order also disapplied the provisions of Schedule 7 to the 2000 Act in relation to "regulated donees" in Northern Ireland. 53. A further order extending the disapplication was made in the spring of 2005 (Political Parties, Elections and Referendums Act 2000 (Disapplication of Part IV for Northern Ireland Parties etc.) Order 2005 (SI 2005/299) ("the Disapplication Order")) and is due to expire on 14th February 2007. 54. The Government announced on 24th January 2006, following consultation, that it intended to: introduce more transparency into the donations process by requiring Northern Ireland parties to submit reports to the Electoral Commission; guard against intimidation by maintaining the confidentiality of legitimate donors; and limit donations to Northern Ireland parties from overseas, whilst recognising the special position of Ireland in relation to Northern Ireland's political culture. This Part of the Act therefore aligns controls in Northern Ireland more closely with those in England, Wales and Scotland. It provides for a transitional stage, under which Northern Ireland parties and regulated donees will continue to be exempt from Part 4 until the end of October 2007. After that, they will be required to comply with most of Part 4. However, initially they need not make their donation reports public; instead the Electoral Commission will check privately for compliance with Part 4. Also, Northern Ireland parties and regulated donees will continue to be able to receive donations from individuals and bodies entitled to donate to Irish political parties under the law of Ireland. | |
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