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Northern Ireland (Executive Formation etc) Act 2019

Contents

Commentary on provisions of Act

Section 1: Extension of period for forming an Executive

  1. Section 1 amends section 1(1) of the 2018 Act so as to extend the period for Executive formation. It enables Northern Ireland Ministers to be appointed without the need for further legislation at any point until 21 October 2019.

Section 2: Limited power to further extend period for Executive formation

  1. Section 2 substitutes a new section 2 in the 2018 Act. As substituted that section will confer a power on the Secretary of State to extend the period for forming an Executive by regulations until 13 January 2020. This means that if Ministers have not been appointed, but the Secretary of State is of the view that further time is needed to enable this, they may extend the period without further primary legislation.
  2. The Secretary of State may only exercise the power on or before 21 October 2019 and if they do, may only extend the period so as to expire on 13 January 2020 (subsections (1) and (2) of new section 2).
  3. The regulations will be subject to the made affirmative procedure in Parliament. That is to say, they may be made without the prior approval of Parliament. They must however be approved by Parliament within 28 days of having been made and if they are not will cease to have effect. The 28 days is calculated so as to exclude any days when Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days (subsections (5) and (8) of new section 2).
  4. If the regulations are not approved within 28 days and cease to have effect on or before 21 October 2019 then the period for forming an Executive will be treated as ending on that date (subsection (6) of new section 2). If the regulations are not approved within 28 days and cease to have effect after 21 October, then the period for forming an Executive is treated as ending when they cease to have effect (subsection (7) of new section 2).

Sections 3-7: Reports and Debates

  1. Sections 3-7 require regular reporting to Parliament on a range of matters relating to Northern Ireland and for debates to be arranged in relation to a number of these reports. Taken as a whole, their effect is as follows.
  2. The Secretary of State must, on or before 4 September 2019, publish and lay before both Houses of Parliament a report which covers the following issues relating to Northern Ireland:
  • Progress towards the formation of a Northern Ireland Executive (section 3(1)),
  • Progress towards preparing legislation to provide for transparency of political donations and loans from 1 January 2014 (section 3(6)),
  • Improvement of higher education and the establishment of a university in Derry/Londonderry (section 3(7)),
  • Progress towards protecting veterans from repeated investigation into Troubles-related incidents by introducing a presumption of non-prosecution in the absence of compelling new evidence (section 3(8)),
  • Progress towards developing new prosecution guidance for Troubles-related cases (section 3(9)),
  • A review of abortion law in Northern Ireland and how that law might be amended in the absence of an Executive (section 3(10)),
  1. The Secretary of State must then, on or before 9 October 2019, publish and lay before both Houses of Parliament a further report on the issues listed above. This requirement then repeats every fourteen calendar days until 18 December 2019 (section 3(5)).
  2. Each time one of these reports is published, the Secretary of State must make arrangements for a neutral motion to be debated in the House of Commons; and for a ‘take note’ motion to be debated in the House of Lords (subsection (2)). These debates must take place within the period of five calendar days beginning with the end of the day on which the report is laid before Parliament (section 3(3)).
  3. Section 3(4) provides that, if the Secretary of State cannot comply with the obligations to lay the report before Parliament and make arrangements for a motion as described above, then a proclamation under the Meeting of Parliament Act 1797 shall require Parliament to meet on a specified day within a period of five calendar days beginning with the end of the day on which the relevant report is laid before Parliament, and to meet on the five following days, excluding weekends and bank holidays.
  4. The Secretary of State must, on or before 4 September, publish separate reports on each of the following issues:
  • Progress made in Northern Ireland on gambling issues (section 3(11));
  • Progress on the use of discretionary powers to provide assistance and support in relation to human trafficking and exploitation and related issues (section 3(12));
  • Progress made towards preparing legislation implementing a pension for victims seriously injured in the Troubles (section 3(13)); and
  • Progress made towards implementing the recommendations of the Inquiry into Historical Institutional Abuse in Northern Ireland between 1922 and 1995 (section 3(14)).
  1. The reports published under section 3(11) and (12) must be included in the first report made under section 3(1) (see paragraph 20 above) and laid before both Houses of Parliament (section 3(2)).
  2. The reports under section 3(13) and (14) must be published before the report under section 3(1) but there is no requirement to lay these reports before Parliament.
  3. Within two sitting days of each report under section 3(11)-(14) being published, the Secretary of State must make arrangements for a separate motion approving the contents of each report to be debated in the House of Commons; and for a ‘take note’ motion to be debated in the House of Lords. The debates must take place within seven sitting days of the report being published- – see sections 4 to 7.
  4. Before making the report under section 3(1), the Secretary of State must publish a separate report on each of the following issues relating to Northern Ireland:
  • Progress towards preparing legislation on the Armed Forces Covenant in Northern Ireland (subsection (15)), and
  • Whether the definition of a victim in Northern Ireland legislation should be revised (subsection (16)).
  1. The Secretary of State must also, on or before 21 October 2019 publish a report on each of the following issues relating to Northern Ireland:
  • Progress towards establishing a Renewable Heat Incentive Hardship Unit (subsection (17)),
  • Progress on libel legislation in Northern Ireland and on any plans to align that law with the law in Great Britain (subsection (18)),
  • Progress on the implementation of Project Life 2 - Strategy for Suicide Prevention in Northern Ireland (subsection (19)), and
  • An assessment in relation to the demand for elective care services and how this is exceeding health service capacity for both new and existing patients across Northern Ireland; details of the current measures being taken - as well as planned - to reduce health and social care waiting times, and the impact of waiting times on children (subsection (20)).
  1. The Secretary of State must also, on or before 1 December 2019, publish a report on future welfare mitigation support measures relating to the period after March 2020 (subsection (21)).
  2. The requirements to publish reports under section 3 cease to apply if a First Minister, deputy First Minister and the Northern Ireland Ministers are appointed.

Section 8: Same sex marriage and opposite sex civil partnerships

  1. Section 8 requires the Secretary of State to make regulations to change the law relating to marriage in Northern Ireland to provide that marriage between same-sex couples is lawful, and that opposite-sex civil partnerships are also lawful. The section comes into effect on 22 October 2019 if a Northern Ireland Executive is not restored by 21 October 2019, and the regulations, which will be subject to the negative resolution procedure in Parliament, must be in force on or before 13 January 2020.
  2. Subsection (2) requires that these regulations must be in force no later than 13 January 2020. However this does not limit the re-exercise of power if needed, meaning further regulations can be made under this power and following the same procedure after this date, as appropriate.
  3. Subsection (3) enables regulations to make appropriate provision to ensure that same-sex marriage and opposite-sex civil partnership in Northern Ireland are accompanied by a comprehensive regime of rights, benefits and obligations which are equivalent to those available for opposite-sex marriage and same-sex civil partnerships.
  4. Subsection (4) provides in particular for the regulations under subsection (3) to deal with parenthood and parental responsibility, gender recognition, the financial consequences of marriage and civil partnership (such as pensions and social security), and for the recognition in Northern Ireland of marriages, civil partnerships and similar relationships formed in the rest of the UK and overseas.
  5. Subsection (5) enables regulations to make provision for conversion from marriage to a civil partnership and vice-versa.
  6. Subsection (6) enables the regulations to also make appropriate provision to protect the ability of individuals and organisations to act in accordance with religious or other belief or opinion in relation to marriage or civil partnership, including the conversion of marriage into civil partnership and vice versa. 
  7. Subsection (7) enables regulations made under section 8 to set fees and to confer discretion, for example on the Registrar General for Northern Ireland, who currently has power to determine the form and particulars of certain applications in connection with marriage. Subsection (7) also enables the regulations to sub-delegate regulation-making and fee-setting powers to ensure that, where appropriate, the relevant Northern Ireland department can make administrative provision in regulations and set fees without the need for recourse to the Assembly each time.
  8. By virtue of subsection (8) a reference to marriage or forming a civil partnership in Northern Ireland in section 8 includes forces and consular marriages and civil partnerships that take place outside the UK.

Section 9: International obligations in respect of CEDAW

  1. Section 9 requires the Secretary of State to make regulations to give effect to the recommendations of the Report of the Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (‘ the CEDAW Report’). This duty comes into effect on 22 October 2019 if the Northern Ireland Executive is not restored by 21 October 2019, and these regulations, which will be subject to the made affirmative resolution procedure in Parliament, will come into effect on or before 31 March 2020.
  2. Subsection (1) requires the Secretary of State to ensure that recommendations 85 and 86 of the CEDAW Report are implemented.
  3. Subsection (2) repeals sections 58 and 59 the Offences Against the Person Act 1861 ("OAPA") (attempts to procure abortion) in Northern Ireland. This is required to achieve implementation of one of the CEDAW Report recommendations.
  4. Subsection (3) prevents any new investigations and criminal proceedings being commenced under those sections. Any existing proceedings must also be discontinued. This is required to achieve implementation of the criminal moratorium, one of the CEDAW Report recommendations.
  5. Subsection (4) requires the Secretary of State to make any other changes as may be required to give effect to the requirement in subsection (1) by regulations. Those regulations must, in particular, make provision for the purposes of regulating abortions in Northern Ireland and that must include the circumstances in which an abortion may take place (subsection (5)).
  6. Subsection (6) requires regulations under subsection (4) to come into force by 31 March 2020. However this does not limit the re-exercise of power if needed, meaning further regulations can be made under this power and following the same procedure after this date, as appropriate.
  7. Subsection (7) requires the Secretary of State to exercise the duties imposed on her by section 9 expeditiously while recognising the importance of doing so for protecting the human rights of women in Northern Ireland.
  8. Subsection (8) enables the Secretary of State to make provision by regulations that appear to be appropriate in view of the repeal of sections 58 and 59 OAPA and the prohibition and discontinuation of investigations and criminal proceedings for offences under those sections.
  9. By virtue of subsection (9), regulations under section 9 (whether under subsection (4) or (8)) may make any provision that could be made by an Act of the Assembly. This would mean, for example, that regulations could delegate functions to Northern Ireland Departments or amend other legislation (matters which would normally require a specific power). 
  10. Subsection (10) notes that the CEDAW Report referred to in section 9 is the Report of the Inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women published in March 2018.

Section 10: Victims payments

  1. Section 10 requires the Secretary of State to establish, by regulations subject to the negative resolution procedure, a scheme of payments for individuals injured in the Troubles (subsection (1)). This is further to the commitment set out in paragraph 28 of the 2014 Stormont House Agreement to find a way to provide a "pension" for those most seriously injured in the Troubles.
  2. Under Subsection (2) the first such regulations must be made before the end of January 2020 and come into force before the end of May 2020 - in practice this means that the scheme should be operational by that later date.
  3. Subsection (3) provides that regulations made under subsection 1 may include specific criteria for eligibility to receive such a payment, including:
  • Nature or extent of injury (for example, setting a threshold for entry to the scheme);
  • How, when, or where the injury was sustained (for example, whether the injury was sustained through the individuals own fault, or what time period the scheme covers);
  • Residence and nationality; and
  • Whether or not an individual has been convicted of an offence (for example, this could be linked to how the injury was sustained to exclude individuals convicted of an offence connected with the incident in which they sustained their injury from the scheme).
  1. Subsection (4) allows the regulations to provide for costs incurred during the making of an application under the scheme to be reimbursed.
  2. Subsection (5) allows the regulations to make provision: determining the size of payments under subsection (1); for payments for periods before the Act was made (for instance back payments); for when payments would need to be reduced (for example where the applicant is already in receipt of similar payments) or repaid (for example in cases of fraud); and how the payments are to be treated by other legislative schemes, such as social security benefits.
  3. Subsection (6) requires that the regulations must provide for backdated payments to be payable to individuals who are eligible for the scheme who make an application within a period specified in the scheme (which must be at least two years). The payments those individuals receive are required to reflect the amount that would have been payable to them had the scheme existed since December 2014 (when the Stormont House Agreement was agreed).
  4. Subsection (7) enables the enables the regulations to make provision for various practical matters, including administration of the scheme (including creation of its administrative body), its funding from the Northern Ireland consolidated fund; evidential matters; information sharing between public authorities (for the purpose of assessing claims); the application process, reviews and appeals of decisions; and support to be given to applicants such as information, advice and assistance.
  5. Subsection (8) provides that the regulations can confer discretion on a person. This might, for instance, allow the scheme administrator to make discretionary decisions in special circumstances such as terminal illness or other special cases.
  6. Subsection (9)(a) allows the regulations to amend legislation made by an Act of Parliament or Northern Ireland legislation. This is expected to be used to make amendments to relevant connecting legislation such as existing social security legislation or the Freedom of Information Act 2000. Subsection (9)(b) allows ancillary provision to be made in respect of Welsh and Scottish primary legislation.
  7. Subsection (10) requires the Secretary of State to have regard to advice from the Commissioner for Victims and Survivors for Northern Ireland in making the first set of regulations.
  8. Subsection (11) is self-explanatory.

Section 11: Regulations – supplementary

  1. Section 11 specifies that the power to make regulations may be used to make different provision for different purposes. This is a standard provision.

Section 12: Regulations - procedure

  1. Section 12 sets out the procedure applicable to the various regulation-making powers contained in the Act. Regulations made under section 9 (International obligations in respect of CEDAW) will be subject to the made affirmative procedure which requires that they must be approved by Parliament within the period of 28 days beginning with the date on which they are made. Regulations under sections 8 and 10 (same sex marriage and opposite sex civil partnership and victims’ payments) are subject to the negative procedure.

Section 13: Extent, commencement and short title

  1. This section is self-explanatory.

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