Northern Ireland (Monitoring Commission etc.) Act 2003

Northern Ireland (Monitoring Commission etc.) Act 2003

2003 CHAPTER 25

Commentary on Sections

Section 10: Secretary of State’s directions: procedure etc

48. This section inserts new section 95A into the 1998 Act. This provides for the parliamentary procedure to be followed when the Secretary of State exercises his powers of direction under new sections 30A (exclusion), 47B (reduction of remuneration) or 51B (reduction of financial assistance).

49. The following directions cannot be made unless they are first approved in draft by each House of Parliament (new section 95A(3)):

• A direction excluding an individual Minister or junior Minister, or all members of a party, from holding Ministerial office;

• A direction reducing the remuneration payable to an individual Minister or junior Minister, or to all members of a party;

• A direction reducing the financial allowance payable to a political party under the 2000 Act.

50. Special provision is, however, made by new section 95A(4) to (8) for those cases where the Secretary of State considers it expedient for a direction listed in the preceding paragraph to take effect without first being approved in draft. In such a case the document containing the direction must be laid before Parliament after being made and will cease to have effect if it is not approved by each House within 40 days. If a motion to approve the direction is rejected by either House of Parliament, the direction ceases to have effect at the end of the day on which the rejection occurs.

51. New section 95A(9) prevents a document, or a draft of a document, containing a direction listed in paragraph 4949 above being treated as a hybrid instrument under the standing orders of either House. The effect is to prevent such an instrument being subject, for example, to a special procedure before the Hybrid Instruments Committee in the House of Lords.

52. Subsection (2) amends section 18 of the 1998 Act so as to provide that the d’Hondt mechanism for filling ministerial offices is not triggered where a direction excluding all members of a political party from holding Ministerial office, and which in reliance on new section 95A(4) took effect without first being approved, ceases to have effect because it fails to gain the approval of both Houses of Parliament under new section 95A(6) or (7). Instead, special provision for the consequences of the direction failing to gain that approval is made by new Schedule 12A to the 1998 Act (new section 95A(10) and subsection (3)).

53. The procedure is different for directions which have the effect of bringing to an end a period of exclusion from ministerial office (section 30A(8)(a)), a period of reduction of remuneration (section 47B(8)(a)) or a period of reduced financial assistance (section 51B(6)(a)). These directions must be laid before Parliament after they are made (new section 95A(2)).

54. The Documentary Evidence Act 1868 (“the 1868 Act”) is applicable to any direction made by the Secretary of State under new sections 30A, 47B and 51B (new section 95A(11)). It is necessary for the present Act to make provision for directions to have the benefit of the 1868 Act to enable them to be proved in civil proceedings in the same manner that proclamations, orders and regulations are proved.

New Schedule 12A

55. Paragraphs 1 to 8 of new Schedule 12A make consequential provision for the case where a direction under new section 30A(5), which excludes all members of a party from holding Ministerial office and in reliance on new section 95A(4) is made without first being approved, fails to gain parliamentary approval. In the case of paragraphs 5 to 8 provision is also made for the case where a direction made under new section 30A(2), which excludes a First Minister or Deputy First Minister from office and which in reliance on new section 95A(4) is made without first being approved, fails to gain parliamentary approval. The effect is, so far as is possible, to reconstitute the Executive in the form it was prior to the direction taking effect.

56. Paragraphs 2 to 4 deal with the position of Northern Ireland Ministers and junior Ministers. Those Northern Ireland Ministers or junior Ministers who lost office as a result of being excluded by the direction shall resume office if they remain eligible to do so. If an excluded Northern Ireland Minister is no longer eligible to hold office, the nominating officer of that Minister’s party will be able to nominate a replacement under section 18(10) of the 1998 Act. Provision made in Assembly standing orders for the filling of junior Ministerial vacancies will apply if an excluded junior Minister is not eligible to resume office.

57. Paragraphs 5 to 8 make provision for the case where a direction under new section 30A(2) or 30A(5), which in reliance on new section 95A(4) has been made without first being approved and has resulted in either the First Minister or Deputy First Minister being excluded from holding Ministerial office, subsequently fails to gain Parliamentary approval. The intention once again is, so far as possible, to restore the position as it was prior to the direction being given. Provided the two individuals who held the offices at the time of the exclusion remain eligible to hold office, the two of them will again be the holders of the two offices. They will resume office regardless of whether in the interim there has been an election or the offices have remained vacant (any election will have been to both offices since, where only one of them was excluded, the other’s office will have become vacant by operation of section 16 of the 1998 Act). If the offices are not filled in this way, because, for example, either or both of the individuals are no longer eligible, then the six weeks for the election of a new First Minister and deputy First Minister under section 16(8) will run from the date when the direction ceases to have effect.