2006 Chapter 53

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These notes refer to the Northern Ireland (St Andrews Agreement) Act 2006 (c.53) which received Royal Assent on 22 November 2006

NORTHERN IRELAND (ST ANDREWS AGREEMENT) ACT 2006

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Northern Ireland (St Andrews Agreement) Act 2006 which received Royal Assent on 22 November 2006. They have been prepared by the Northern Ireland Office in order to assist the reader of the Act and to help inform debate on it. 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 AND BACKGROUND

3.     The Act gives legislative effect to particular elements of the St Andrews Agreement, which was reached on 13 October 2006 following negotiations between the British and Irish Governments and the Northern Ireland political parties.

4.     The Northern Ireland Act 1998 ("the 1998 Act") had enshrined in legislation the fundamental principles of the Belfast (Good Friday) Agreement and made provision for the institutions necessary to deliver them, primarily the Northern Ireland Assembly ("the Northern Ireland Assembly"), the devolved Executive Committee, North-South and East-West collaborative institutions and new Equality and Human Rights Commissions for Northern Ireland.

5.     The new devolved institutions, after a period in shadow format, came into being on 2 December 1999. Due to a breakdown in trust between the parties within the Executive coalition, devolution was suspended in October 2002 and has remained in suspension ever since. During that period, the British and Irish Governments have sought to find a way of rebuilding that trust to enable the parties once more to go into government together.

6.     To do this, two main issues had to be resolved - the need for support for policing and the rule of law across the whole community which would enable, in due course, the safe devolution of policing and justice to the restored Assembly, and support for power-sharing and the political institutions.

7.     On 8 May 2006, the Northern Ireland Act 2006 received Royal Assent. That Act recalled the Members of the Northern Ireland Assembly to sit in a "2006 Assembly" whose focus was to provide a forum for the parties to begin preparations for devolved government. It set a deadline of 24 November 2006 for the parties to have made sufficient progress to allow for devolution to be fully restored.

8.     The current Act, which gives effect to the St Andrews Agreement of 13 October 2006, builds on that legislation, in particular by creating a further "Transitional Assembly" which will sit from 24 November 2006 and by setting out the arrangements to facilitate a return to devolved government within Northern Ireland.

OVERVIEW

Part 1: Preparations for the restoration of devolved government

9.     This Part of the Act makes provision for a new Transitional Assembly, which will operate between the coming into force of this Act, and 26 March 2007, which is the target date for restoration of the Northern Ireland Assembly. It also deals with the consequences of compliance or non-compliance with the St Andrews Agreement timetable.

10.     Part 1 of the Act also makes provision for the election of the next Assembly. The Assembly will be dissolved on 30 January 2007 and the poll will be held on 7 March 2007. It also disapplies the requirement for a by-election to be held in respect of any Assembly vacancy which exists in the period between the passing of the Act and the date of the next Assembly election. It also adjusts the rules for remuneration of Assembly members to take account of the election.

Part 2: Amendments of the Northern Ireland Act 1998 etc

11.     The purpose of this Part of the Act is to amend the 1998 Act in accordance with the terms of the St Andrews Agreement of 13 October 2006. It will come into force if (and only if) devolved government is restored on 26 March 2007.

12.     The Act provides for a new Ministerial Code and places a duty upon Ministers and junior Ministers, notwithstanding their executive authority in their areas of responsibility, to act in accordance with the provisions on ministerial accountability of the Code. This Part of the Act also makes provision in relation to which matters should fall to the Executive Committee for discussion and agreement. It ensures that changes to the Code must be agreed by the Executive Committee and then proposed to the Assembly by the First and deputy First Ministers. Any changes would have effect once endorsed by cross-community support there.

13.     It also amends the 1998 Act to allow the Assembly to refer important Ministerial decisions to the Executive Committee. It does this by enabling thirty members of the Assembly ("MLA"s) to initiate such a referral within seven days of a Ministerial decision or notification of the decision, if certified as being of public importance by the Presiding Officer.

14.     It amends the pledge of office, which all Ministers must affirm before taking up office, to require commitments to: promote the interests of the whole community represented in the Assembly towards the goal of a shared future; participate fully in the Executive Committee, the North-South Ministerial Council ("the NSMC") and the British-Irish Council ("the BIC"); observe the joint nature of the offices of the First and deputy First Ministers; and uphold the rule of law, consistent with paragraph 6 of the St Andrews Agreement.

15.     It creates new arrangements for the appointment of the First and deputy First Ministers, who are to be nominated by the largest parties in each of the two largest designations within the Assembly. It provides for an institutional review committee to consider whether these new arrangements should continue to apply beyond the 2011 Assembly election and to consider other aspects of the operational workings of Parts 3 and 4 of the 1998 Act. It also puts the non-statutory Committee of the Centre, which operated in the Assembly prior to suspension, on a statutory footing.

16.     It amends the provisions of the 1998 Act that deal with the NSMC and BIC, providing for the Minister or junior Minister responsible for an issue under consideration at a Council meeting to be entitled to attend, and setting out the arrangements to apply in circumstances where the responsible Minister or junior Minister does not intend to attend or where there is a dispute over who is responsible.

17.     It places a duty on the restored Assembly to report to the Secretary of State before 27 March 2008 on progress towards the devolution of policing and justice matters. This is consistent with the May 2008 target for the Assembly to request the devolution of criminal justice and policing from the British Government, set out in paragraph 7 of the St Andrews Agreement.

18.     Finally, this Part of the Act places duties on the Executive Committee to adopt strategies relating to the Irish and Ulster Scots languages, Ulster Scots heritage and culture, and poverty, social exclusion and patterns of deprivation.

Part 3: Other amendments

19.     This Part of the Act makes provision in relation to District Policing Partnerships ("DPP"s) and in particular enables DPPs to be reconstituted to include Sinn Fein membership, as necessary, before the next local election in Northern Ireland.

20.     Part 3 of the Act also provides for an amendment to the Education (Northern Ireland) Order 2006 (S.I. 2006/1915 (N.I. 11)). This amendment defers the commencement of provisions in that Order to abolish academic selection until 28 March 2007, which is shortly after the target date for the restoration of devolution. In the event of the restoration of the devolved institutions on this date, the commencement of the provision abolishing academic selection would be subject to an affirmative resolution of the Assembly. If the Assembly is not restored on that date the abolition of academic selection will commence immediately. In either case the abolition will take effect in relation to admissions from 31 July 2010 onwards. This Part also makes provision consequential on that abolition.

Part 4: Supplemental

21.     This Part of the Act deals with supplementary provisions, including the repeal of the Northern Ireland Act 2006 and the Parliamentary procedures to apply to consequential, supplementary and similar orders made under the Act, as well as dealing with commencement arrangements.

TERRITORIAL EXTENT

22.     Sections 20 and 21 (together with Schedules 8 and 9) extend to Northern Ireland only. The rest of the Act extends to the whole of the UK.

TERRITORIAL APPLICATION: WALES

23.     The Act does not have any special effect on Wales and does not affect the National Assembly for Wales.

COMMENTARY ON SECTIONS

PART 1: PREPARATIONS FOR THE RESTORATION OF DEVOLVED GOVERNMENT

Section 1: Preparations for the restoration of devolved government

24.     Section 1 provides for the creation of a new "Transitional Assembly". Section 1(1)(a) provides that the members of the Transitional Assembly will be the members of the Northern Ireland Assembly (which is currently suspended under the Northern Ireland Act 2000). Section 1(1)(b) makes clear that the purpose of the Transitional Assembly is to take part in preparations for the restoration of devolved government in Northern Ireland, in line with the strategy set out in the St Andrews Agreement.

25.     Subsection (2) of section 1 introduces Schedule 1 to the Act, which makes further provision in relation to the Transitional Assembly. Subsection (3) states that the Act does not alter the operation of section 1 of the Northern Ireland Act 2000 ("the 2000 Act"). This means that direct rule remains in force until the making of a restoration order. Limited exceptions to this are set out in subsection (4), which refers, in particular, to nomination of First and deputy First Ministers to the Northern Ireland Assembly, and full restoration of devolved government and the repeal of the 2000 Act under Schedules 2 and 4.

Section 2: Compliance or non-compliance with the St Andrews Agreement timetable

26.     Section 2 makes provision for bringing into force Schedules 2 to 4. Schedules 2 and 3 respectively provide for, amongst other things, the restoration, or alternatively, dissolution of the Northern Ireland Assembly. Under subsection (1), if, at any time before 25 March 2007, the Secretary of State considers that there is no reasonable prospect that an Executive will be formed on 26 March 2007, he may make an order bringing Schedule 3 to the Act into force (which would in effect provide for the dissolution of the Assembly and the indefinite postponement of Assembly elections).

27.     If the Secretary of State does not make an order under subsection (1) before 25 March 2007, subsection (2) requires him to make a restoration order (under section 2(2) of the 2000 Act), and brings Schedule 2 into force on 26 March 2007. Schedule 4 - which provides for the repeal of the 2000 Act - will come into force on 28 March 2007 so long as an Executive is formed on 26 March 2007.

28.     Subsections (3) and (4) provide for a scenario where the Secretary of State has made a restoration order, but it appears to him that not all of the Ministerial offices of the Northern Ireland Executive have been filled by the end of 26 March 2007. In these circumstances, the Secretary of State must make an order under the 2000 Act revoking the restoration order and this must come into force on 28 March 2007, at the same time as Schedule 3.

Section 3: Next Northern Ireland Assembly election to be in March 2007 etc

29.     Section 3 makes provision for the election of the next Assembly. It specifies that the current Assembly (i.e. that elected on 26 November 2003) should be dissolved on 30 January 2007 and sets the date of the poll for the election to the next Assembly as 7 March 2007.

30.     Subsections (2) and (3) disapply Article 7 of the Northern Ireland Assembly (Elections) Order 2001 ("the Elections Order") (S.I. 2001/2599). The Elections Order makes provision for cases where the Presiding Officer of the Assembly notifies the Chief Electoral Officer ("the CEO") of a vacancy in the membership of the Assembly, or a court notifies the CEO of a successful challenge to the election of a person to the Assembly. Where the CEO receives such a notification, Article 7 would normally require him to call a by-election for the vacant seat. This requirement is disapplied by section 3 in respect of any vacancy which exists between the passing of the Act (including any vacancy that has arisen before the passing of this Act) and the date of the next Assembly election. This affects the Transitional Assembly membership because of the effect of section 1(1)(a).

Section 4: Remuneration of members of the Northern Ireland Assembly

31.     This section authorises the payment of salaries and allowances to former Members of the Assembly after it is dissolved in January 2007 and before the March 2007 election and the payment of salaries and allowances to members elected in March 2007.

32.     Specifically, subsection (2) enables provisions to be made for former Members to receive salaries and allowances up to the last nomination day for the March 2007 election, and, if nominated, up to the end of the day of the poll for that election.

33.     Also, subsections (3) and (4) ensure that members of the Assembly who are elected in March 2007 can receive their salaries from the date (following the election) on which they take their seats in the Transitional Assembly.

PART 2: AMENDMENTS OF THE NORTHERN IRELAND ACT 1998 ETC

Ministerial conduct

Section 5: The Executive Committee and the Ministerial Code

34.     Section 20 of the 1998 Act makes provision for there to be an Executive Committee of the Northern Ireland Assembly and specifies that the functions of that Committee shall be those set out in paragraphs 19 and 20 of Strand One of the Belfast Agreement. This means that the Executive Committee is to provide the forum for the discussion of, and agreement on, issues which cut across the responsibilities of two or more Ministers, for prioritising executive and legislative proposals and for recommending a common position where necessary (e.g., in dealing with external relationships). It is also charged with seeking to agree each year, and review as necessary, a programme for government incorporating an agreed budget linked to policies and programmes.

35.     Consistent with the St Andrews Agreement, section 5(1) adds a new subsection to section 20 to provide that the Committee shall also be the forum for discussion and agreement on significant or controversial matters that are clearly outside the scope of the programme of government agreed by the Committee, or significant or controversial matters that the First and deputy First Ministers acting jointly have determined to be matters that should fall to the Executive Committee.

36.     Subsection (2) of section 5 inserts a new section 28A into the 1998 Act. The new section provides for a statutory Ministerial Code and places a duty on all Ministers and junior Ministers to act in accordance with the provisions of that Code (new section 28A(1)). In this new section, "Ministerial Code" refers either to the Ministerial Code prepared by the Transitional Assembly under paragraph 4 of Schedule 1 to this Act or to any replacement Code prepared and approved by the Northern Ireland Assembly in accordance with section 28A. Subsections (3) and (4) of section 28A set out that any draft amendments to the Code, or any draft replacement Code prepared by the Executive Committee, must be laid before the Assembly for approval and shall only have effect once approved by a cross-community vote in the Assembly.

37.     Breach of the duty to act in accordance with the Ministerial Code would constitute a breach of the pledge of office, and so where a Minister or junior Minister has not acted in accordance with the Code it would be open to the Assembly to impose any sanction available to them for breach of the pledge. The available sanctions are censure, reduction of remuneration and financial assistance, and exclusion from Ministerial office.

38.     Subsections (5) to (9) of new section 28A relate to the content of the Code, and specify that the Code must contain certain provisions in relation to Ministerial accountability to the Executive.

39.     Subsection (5) of new section 28A sets out that the Code must contain a provision to require all Ministers and junior Ministers to bring to the attention of the Executive Committee any matter that ought to be considered by the Committee under subsection (3) or (4) of section 20 of the 1998 Act. This new provision is not intended to alter an individual Minister's authority in his area of responsibility, but rather to ensure that Ministerial decisions do not contravene any collective position agreed by the Executive Committee on a matter that falls to them by virtue of section 20 of the 1998 Act.

40.     Subsection (6) of new section 28A builds on subsection (5) and requires the Code to set out a procedure to enable a Minister to determine whether any Ministerial decision that he has taken or is about to take relates to a matter that ought to be considered by the Executive Committee under section 20 of the 1998 Act. It is intended to provide clarity for Ministers, primarily to avoid them breaching the provisions of the Code inadvertently. It does not affect the Executive's competence at the expense of individual Ministers' executive authority within their areas of responsibility. The Code, as at present, will determine what is and is not, for the Executive, in line with the provision of paragraphs 19 and 20 of Strand One of the Belfast Agreement and the new section 20(4) of the 1998 Act.

41.     Subsection (7) of new section 28A requires the Code to put in place procedures for the Executive Committee in relation to the taking of decisions and in relation to the Committee's consideration of decision papers that are due for consideration by the North-South Ministerial Council or by the British-Irish Council.

42.     Subsection (8) of new section 28A requires the Code to place a duty on the First and deputy First Ministers, as chairmen of the Executive Committee, to seek to facilitate and encourage consensus within that Committee where possible. Where consensus cannot be reached on a given issue a vote may be taken and it will be open to any three members of the Committee to require that the vote should require cross-community support in the Committee.

43.     Subsection (9) of new section 28A provides that the Code may also include other provisions that the Executive Committee thinks fit (subject, of course, to any Assembly cross-community approval required under subsection (4)).

44.     Subsection (10) provides that a Minister or junior Minister does not have authority to take any decision outwith the procedures set out in the Ministerial Code under subsection (5).

Section 6: Power to refer Ministerial decision to the Executive Committee

45.     Section 6 inserts a new section 28B into the 1998 Act, to establish a new procedure by which a Ministerial decision may be referred to the Executive Committee for consideration.

46.     This new section applies where thirty MLAs raise a petition of concern in the Assembly that a Ministerial decision may have been taken in contravention of the Ministerial Code or that it relates to a matter of public importance. The decision can only be referred to the Committee once under the provisions set out in this section.

47.     New section 28B(3) of the 1998 Act places a duty on the Presiding Officer to refer the Ministerial decision to the Executive Committee for consideration, if he has first both consulted the parties and certified that the decision relates to a matter of public importance. These two conditions, along with the bar on repeat referrals, offer protection against the vexatious or malicious exercise of the referral power. Subsection (5) establishes a time limit on referrals and specifies that any referral to the Executive Committee under this section must be made within seven sitting days of the decision being taken, or, where appropriate, within seven sitting days of the day on which the decision was notified to the Assembly.

48.     Subsection (4) of section 28B of the 1998 Act requires the Executive Committee to consider any referral under this section and then notify the Presiding Officer whether in its view the decision was taken in contravention of the Code, whether it relates to a significant or controversial matter and what, if any, action the Committee intends to take or has taken.

49.     Section 28B does not specify what action the Committee can take. However, if it concluded that the decision was taken in breach of the Code, it could propose a motion (to be passed only with cross-community support) that any of the sanctions for breach of the pledge of office available under the 1998 Act be imposed upon the relevant Minister.

50.     Subsection (6) specifies that the Committee must complete its consideration of any decision within seven sitting days of the referral.

Section 7: Pledge of office

51.     Section 7 amends the pledge of office, as set out in Schedule 4 to the 1998 Act, which all Ministers are required to affirm on taking up office. Under this section Ministers are required to make four new commitments as conditions of office. They must promote the interests of the whole Northern Ireland community, participate fully in the Executive Committee, the NSMC and the BIC, observe the joint nature of the offices of First Minister and deputy First Minister and uphold the rule of law (including by supporting policing and the courts as set out in paragraph 6 of the St Andrews Agreement).

Ministerial appointments

Section 8: First Minister, deputy First Minister and Northern Ireland Ministers

52.     Section 8 puts in place new arrangements for appointing the First and deputy First Ministers following an Assembly election. Subsection (1) substitutes new sections 16A, 16B and 16C for existing section 16 of the 1998 Act. These provisions need to be read in conjunction with section 11 and, in particular, the new section 29B.

53.     The new arrangements for filling the positions of First and deputy First Ministers after an election are provided for in the new section 16A.

54.     Under the new section 16A, the First Minister is nominated by the largest party within the largest political designation (see new section 16A(4)); the deputy First Minister is nominated by the largest party within the next largest designation (see section 16A(5)). ("Designation" is the term used to refer to the group of MLAs who have designated themselves as "Nationalist" or "Unionist" or "Other" - see new section 16C.) Once these nominations have been made, the d'Hondt procedure for filling Ministerial offices, set out in section 18 of the 1998 Act, is run. These procedures take place within seven days following the first meeting of the Assembly after an election (new section 16A(3)) and may be re-run if the individuals nominated do not take up office within a period to be specified in standing orders (new section 16A(6) and (7)).

55.     New section 16A(9) provides that the people nominated for the offices of First Minister and deputy First Minister cannot take up office until they have each affirmed the terms of the pledge of office. New section 16A(11) sets out arrangements that allow the holder of either office to designate a Northern Ireland Minister to carry out his functions if he is absent or incapacitated; but this can only be for a maximum of six weeks.

56.     New section 16B applies where a vacancy arises in the office of First or deputy First Minister otherwise than following an Assembly dissolution or election. As at present, either the First Minister or the deputy First Minister may resign at any time by notice in writing to the Presiding Officer (new section 16B(1)(a)), and will also cease to hold office if he ceases to be a Member of the Assembly (new section 16B(1)(b)). If one of the office holders ceases to hold office, the other technically does as well (because the offices are jointly operated - see new section 16B(2)(a)) but he may continue to exercise the functions of the office to ensure continuity of government (new section 16B(2)(b)). The procedure for filling vacancies where this section applies mirrors the procedure set out in new section 16A for filling the offices after an election.

57.     The new section 16C makes supplementary provision for the appointment of the First and deputy First Ministers. It clarifies who is entitled to make nominations on behalf of a party (subsection (1) defines the "nominating officer" in line with the provisions of the Political Parties, Elections and Referendums Act 2000), defines party designation (new section 16C(3)) and sets out how party size and designation size are calculated (new section 16C(2), (4) and (5)).

58.     New section 16C(6) deals with the arrangements that apply if the largest party within the largest designation is not the largest party within the Assembly. In such circumstances, the responsibility for nominating the First Minister falls to the largest party within the Assembly, with the largest party in the largest designation nominating the deputy First Minister.

59.     New section 16C(7) to (12) deals with the arrangements that apply if a party is entitled to make nominations under new section 16A but its members have been excluded from holding Ministerial office under section 30(2) or 30A(5) of the 1998 Act. The size of the party is counted as nil, so that the party's right to nominate the First or deputy First Minister passes to the next largest party within the same designation (new section 16C(7) and (8)). The calculation of designation size is not affected.

60.     New section 16C(9) provides that the incumbent First and deputy First Ministers both cease to hold office if either of their predecessors ceased to hold office as a result of an exclusion order under section 30(2) or 30A(5) and that period of exclusion comes to an end (unless any period of exclusion of the party under the other provision has not come to an end). The procedure in new section 16B will be used to fill the offices.

61.     New section 16C(11) and (12) defines the time periods that are to apply to the foregoing subsections. New section 16C(13) provides for standing orders to make further provision as to the procedures to be followed in making nominations under new sections 16A and 16B.

62.     Section 8(2) provides for the consequential amendments set out in Schedule 5 to have effect.