Northern Ireland (Executive Formation And Organ And Tissue Donation) Act 2023

Policy background

4. Northern Ireland Assembly elections were held on 5 May 2022, as five years had passed since the previous Assembly was elected. Prior to the election, there was no functioning Executive due to the resignation of the First Minister on 4 February 2022. The First Minister’s resignation meant that the deputy First Minister also ceased to hold office and that there was no longer any functioning Executive Committee.
5. As a result of the election on 5 May, 90 Members of the Legislative Assembly were elected, forming a new Assembly. The Northern Ireland Act 1998 requires that the Assembly first meets within 8 days of a poll, and that meeting commences the period for filling Ministerial offices.
6. The Northern Ireland (Ministers, Elections and Petitions of Concern) Act 2022 implemented changes agreed within New Decade, New Approach (NDNA): the agreement that restored the devolved institutions in 2020. These changes include provision for a longer period of time in which to form an Executive, and now allows for an initial period of 6 weeks from the date that the Assembly first meets, followed by 3 successive periods of 6 weeks (i.e. 24 weeks in total), unless the Assembly resolves (with cross-community support) that the period should not be further extended. During this time, NI Ministers who were in post before the election are allowed to remain so in a caretaker capacity.
7. The period for filling Ministerial offices after the Assembly election in May initially came to an end on 28 October 2022. As those offices were not filled, the Secretary of State for Northern Ireland fell under a duty to propose a date for a further Assembly election as soon as practicable to take place within 12 weeks. NI Ministers in post before the election also lost office at this stage.
8. Parliament subsequently passed the Northern Ireland (Executive Formation etc) Act 2022 which retrospectively extended the period for Executive formation from when it ended on 27 October until 8 December 2022. It also provided a power for the Secretary of State to further extend that period until 19 January 2023 by SI. As the new deadline provided for by the Northern Ireland (Executive Formation etc) Act 2022 has now passed, without the Ministerial offices being filled, he is now under a legal duty to call a further Assembly election in Northern Ireland.
9. At present, as the Assembly has been unable to elect a Presiding Officer and deputies since the May 2022 election, it is unable to conduct any other business1. There is therefore no present mechanism by which any draft regulations may be approved by the Assembly.

Executive formation

10. Following further consultation with the Northern Ireland political parties and the wider public, the Government has assessed that an immediate election would not support the restoration of the devolved institutions. The Act therefore seeks to further extend the period for Executive formation to 18 January 2024. The Secretary of State will still have the power to call an Assembly election before that date.

Organ and tissue donation

11. The Act amends the procedure for making regulations under section 3(9A) of the Human Tissue Act 2004, as amended by the Organ and Tissue Donation (Deemed Consent) Act (Northern Ireland) 2022, defining "permitted material" for the purpose of transplantation in Northern Ireland. This would allow regulations to be made regarding rules for organ donation in the absence of a Presiding Officer and deputies in the Assembly.
12. The Government took the decision to bring forward these amendments to progress this issue in the absence of properly functioning devolved institutions.