DPRR/13-14/68
DELEGATED POWERS AND REGULATORY REFORM COMMITTEE
NORTHERN IRELAND (MISCELLANEOUS PROVISIONS) BILL
Memorandum by the Northern Ireland Office
Introduction
1.
This Memorandum has been prepared by the Northern Ireland Office to assist in
the examination of delegated powers in the draft Northern Ireland (Miscellaneous
Provisions) Bill. It outlines the provisions in the Bill which confer powers to make
delegated legislation, and explains why these powers have been taken and the
nature of, and reason for, the procedure selected for exercising those powers.
2.
This Bill follows the Government’s consultations on Improving Electoral Registration
Procedures in Northern Ireland in 2009, Donations and Loans to Northern Ireland Political
Parties in 2010 and Measures to Improve the Operation of the Northern Ireland Assembly in
2012. The Northern Ireland Affairs Committee published a report on its prelegislative scrutiny of the Bill on 25 March 2013. The Bill deals with a broad range
of constitutional issues relating to Northern Ireland and a number of technical
order-making powers in relation to Northern Ireland.
Clause 1(2): Power to increase transparency
Power conferred on:
Secretary of State
Power exercised by:
Order made by statutory instrument
Parliamentary Procedure:
Affirmative resolution
Background
3.
The regime governing donations and loans to political parties and other regulated
donees in the UK (including in Northern Ireland) is contained in Parts 4 and 4A of
the Political Parties, Elections and Referendums Act 2000 (“PPERA”) and, in
relation to regulated transactions (“loans”) only, the Electoral Administration Act
2006 (“EAA”). Among other things, those pieces of legislation provide for
quarterly reporting to the Electoral Commission by political parties of donations
and loans received from certain sources and/or over certain amounts, and a right
of inspection of the register containing these reports. To allow for the exercise of
that right the Electoral Commission publishes an online register of reported
donations and loans.
4.
Both PPERA and EAA treat Northern Ireland separately in relation to loans and
donations “in recognition of the special circumstances which apply in Northern
Ireland”.1 One principal difference in treatment relates to the confidentiality of the
information on donations and loans that is reported to the Electoral Commission.
Originally, the reporting requirements were disapplied in their entirety in respect of
1
Paragraph 133, Explanatory Note, PPERA
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Northern Ireland. Since 1 November 2007 in respect of donations and 1 July 2008
in respect of loans, the reporting requirements have applied to Northern Ireland so
that political parties must report to the Electoral Commission, but temporary
provisions have been inserted into PPERA for a prescribed period, which ensure
the confidentiality of those reports, thus ensuring anonymity for donors and
lenders. The prescribed period has been extended on three occasions, most
recently extending the prescribed period until 30 September 2014.
5.
Once the prescribed period ends, there will be no legislation in place that either (a)
prevents the Electoral Commission from disclosing the information provided to it
under the reporting requirements; or (b) prevents any member of the public from
exercising the right of access to information on the register maintained by the
Electoral Commission. That means that, as the law stands, all information reported
to the Electoral Commissioner since 1 November 2007 could be disclosed and
accessed by the public after the expiry of the prescribed period.
The delegated power
6.
Clause 1(2) inserts sections 15A and 15B into the Northern Ireland (Miscellaneous
Provisions) Act 2006, which provide for a power to permit or require the Electoral
Commission to publish information about donations received by Northern Ireland
recipients.2 The Secretary of State can make similar provision in respect of loans to
Northern Ireland recipients3 by virtue of section 63 of EAA.4
7.
There are a number of reasons why the publication of information about
donations and loans has been left to delegated legislation rather than included in
the Bill:
a. A power to increase transparency by secondary legislation will allow the
Government to make provision incrementally over time. For example,
the power might be exercised in the first instance to permit the
publication of (a) the amounts of donations or loans received; and/or (b)
whether such donations or loans were made by an individual or a
corporation; and/or (c) whether such donations or loans were made by
an Irish citizen or body within the meaning of section 71B and 71Z1 of
PPERA.
b. The existing provisions prohibiting the publication of information
relating to donations and loans to Northern Ireland political parties were
made because of fears of intimidation of potential donors. The threat
level in Northern Ireland remains severe and, for some, sectarian
divisions remain deeply entrenched.5 A power to permit publication of
donor and lender details by secondary legislation will allow the
Government to take into account up-to-date information about the
“Northern Ireland recipient” is defined by section 71A of PPERA.
“Northern Ireland participant” is defined by section 71Z of PPERA.
4 Section 63 of EAA provides for the power to make provision in relation to loans which corresponds to or is similar
to any provision relating to donations for political purposes which is made by, or which may be made under, the
Northern Ireland (Miscellaneous Provisions) Act 2006.
5 See the recent statements of the Secretary of State for Northern Ireland in Parliament: Hansard, 10 Jan 2013: Column
501 and Hansard, 5 Dec 2012 : Column 853.
2
3
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security situation and the risk to donors and lenders at the time any such
order is made.
c. The structure of the loans regime created under section 63 of EAA is
unusual. Provisions were inserted into PPERA by the Electoral
Administration Act 2006 (Regulation of Loans etc: Northern Ireland)
Order 2008/1319 and further detail about how that regime should
operate was set out in the Political Parties, Elections and Referendums
Act 2000 (Northern Ireland Political Parties) Order 2008/1737. Provision
increasing transparency in respect of the loans regime can be made by
secondary legislation by amendment of S.I. 2008/1319 and S.I.
2008/1737. The power in this Bill to increase transparency of donations
by secondary legislation will allow the Government to make any changes
to the donations and loans regimes together in the same statutory
instrument for ease of access by the end user.
8.
The power is subject to the affirmative resolution procedure. This is because it
includes power to amend primary legislation. It is also consistent with
parliamentary procedure under section 63 of EAA.
Clauses 1(3) and 2(2): Power to prescribe requirements for consent
Power conferred on:
Secretary of State
Power exercised by:
Order made by statutory instrument
Parliamentary Procedure:
Affirmative resolution
9.
Clauses 1(3) inserts subsections (4A) and (4B) into section 71E of PPERA, which
provide that information that might reveal the identity of a person who made a
donation can be disclosed by the Electoral Commission if they believe on
reasonable grounds that the donor or lender has consented to that disclosure in
accordance with prescribed requirements. Clause 2(2) inserts a similar provision
into section 71Z4 of PPERA in respect of loans. “Prescribed” means prescribed by
an order made by the Secretary of State after consulting the Electoral
Commission.6
10.
It is appropriate to provide for this power because provision about the
requirements for consent will be at a level of detail which is not appropriate to
include in primary legislation. In addition, should minor changes be required in
respect of the requirements for consent, secondary legislation may be amended,
subject to the relevant procedural safeguards, more easily and quickly than primary
legislation.
11.
The power is subject to the affirmative resolution procedure.7 This is consistent
with the other powers to prescribe requirements in Part 4, Chapter 6 and Part 4A,
Chapter 2 of PPERA. In addition, as any change to the requirements for consent
6
7
Sections 71A(4) and 71Z(4), PPERA.
Section 156(4), PPERA.
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has the potential to engage the Article 8 rights of donors or lenders who are
affected, the Government considers that any such order should be subject to
debate and prior approval by both Houses before it is made.
Clause 2(3): Amendment of power under s.63, EAA
Power conferred on:
Secretary of State for Northern Ireland
Power exercised by:
Order made by statutory instrument
Parliamentary Procedure:
Affirmative resolution
12.
Clause 2(3) makes a minor amendment to the power under section 63, providing
that for the purpose of the exercise of that power, the amendment made to section
71E by the insertion of new subsections (4A) and (4B) is treated as having been
made by the Northern Ireland (Miscellaneous Provisions) Act 2006. This is to
ensure that the loans regime created under section 63 can reproduce the donations
regime in its entirety. It is to avoid the gap in legislation that would arise if, for
example, the loans regime were revoked in full and then reinstated.
13.
The power in section 63, EAA, is not otherwise altered. No change is made to the
person upon whom the power is conferred, the type of instrument or the
parliamentary procedure.
Clauses 6 and 10, 11 and 12: Reduction in the size of the Assembly and Excepted
and reserved matters
Power conferred on:
Secretary of State
Power exercised by:
Order in Council
Parliamentary Procedure:
Affirmative resolution, following resolution of the Northern Ireland
Assembly
14.
The legislative competence of the Northern Ireland Assembly is set out in the
Northern Ireland Act 1998 (“the 1998 Act”). Matters can fall into three categories:
excepted, reserved and transferred. Excepted matters are listed in Schedule 2 to the
1998 Act; reserved matters are listed in Schedule 3 to the 1998 Act; and transferred
matters include anything that has not been excepted or reserved. Section 4(2)(a) of
the 1998 Act provides for a power of the Secretary of State to make an Order in
Council that any reserved matter should become a transferred matter. There is no
similar power in relation to excepted matters, which can only be reserved or
transferred by primary legislation.
15.
The size of the Assembly, the appointment of the Civil Service Commissioners for
Northern Ireland, the Northern Ireland Human Rights Commission and district
electoral areas are currently excepted matters under Schedule 2.8 Clauses 6 and 10,
8
See paragraphs 12, 21, 22(c) and (f) of Schedule 2.
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11 and 12 move those matters from Schedule 2 to Schedule 3, making them
reserved matters.
16.
These clauses do not create delegated powers as such. However, they have the
effect of bringing the matters covered by these clauses within the general power of
the Secretary of State under section 4(2) of the 1998 Act to amend Schedule 3 so
that matters are no longer reserved. In other words, they have the effect of
enabling the Secretary of State to devolve these matters to the Northern Ireland
administration by secondary legislation.
17.
The power under section 4(2) is exercised by Order in Council. The Secretary of
state shall not lay a draft of the order before Parliament unless the Assembly has
passed with cross-community support a resolution praying that the matter
concerned should cease to be or, as the case may be, should become a reserved
matter (s.4(3)). The order is subject to the affirmative resolution procedure (s.4(4)).
Provision consequential on an order under section 4(2) can be made under section
86 of the 1998 Act, which includes provision amending the law of any part of the
United Kingdom. Orders under section 86 are subject to the affirmative resolution
procedure. The clauses in this Bill do not alter the provisions about the exercise of
the power in section 4(2) or section 86 of the 1998 Act.
Clause 13: Removal of requirement to prescribe a canvass form
Power conferred on:
Secretary of State
Power exercised by:
Order made by statutory instrument
Parliamentary Procedure:
Negative resolution
18.
The process for carrying out a canvass in Northern Ireland is set out in sections 10
and 10(1A) of the Representation of the People Act 1983 (the “1983 Act”). Section
10(4) provides that the form used for the purposes of the canvass in Northern
Ireland shall be a form prescribed for those purposes.
19.
This is in contrast to the current position in Great Britain, where a “form to the
same effect” can be used. Further flexibility will be introduced in Great Britain
when the provisions of section 4 and Schedule 4 to the Electoral Registration and
Administration Act 2013 (“ERAA”) are brought into force. The amendments
introduced by those provisions will remove the requirement for a canvass form to
be prescribed in regulations, although it is envisaged in the legislation that
functions of designing a canvass form might be conferred on the Electoral
Commission.
20.
Clause 13 removes the requirement to prescribe a canvass form and replaces it
with a requirement to prescribe requirements as to the form or content of a
canvass form. Under this new power, the Secretary of State will be required to
make some provision in legislation, but will not be required to prescribe the form
itself in secondary legislation (although the power would permit her to do so). This
change has been made because:
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a. The detail included on a canvass form is clearly inappropriate for
inclusion in primary legislation. However, the Government considers
that, in light of the quickly developing technology on voter registration, it
would also be inappropriate to restrict the way in which a canvass can be
carried out by requiring that the form itself, or a form to the same effect,
be included in regulations. The matters which are essential for inclusion
on the form are already set out in primary legislation in section 10A(4A)(4B) of the 1983 Act and, as a result, it is appropriate for secondary
legislation simply to set requirements about form or content in general
terms rather than prescribing a form to be used.
b. Section 10ZA(2) of the 1983 Act provides that a canvass must be
conducted in a year other than that set out in 10ZA(1) if the Chief
Electoral Officer makes a recommendation on or before 15th April in that
year and the Secretary of State is satisfied that the public interest requires
a canvass. With such a recommendation, there is a very short period in
which to carry out consultation and user-testing to ensure that the
canvass form is fit for purpose in line with the reasons for the
recommendation to hold a canvass, and lay regulations prescribing the
new canvass form to come into force before the summer recess. In light
of this difficulty, the Electoral Commission recommended that the
requirement to prescribe a canvass form in regulations should be
removed.
c. The requirement to prescribe a canvass form or anything in relation to it
has been removed entirely in relation to Great Britain. The Electoral
Commission has recommended that the position in Northern Ireland
should be brought into line with that in Great Britain. However, the
Government considers that remains appropriate in Northern Ireland to
prescribe some of the requirements as to the form or content of the
canvass form in regulations.
21.
The power to prescribe requirements as to the form or content of the canvass
form will be subject to the negative resolution procedure. This is different to the
procedure for most regulations made under the 1983 Act (see s.201(2)). The
negative procedure is appropriate because:
a. Requirements as to the form or content of the canvass form are most
likely to change in the period immediately before a canvass. A canvass
may be required in Northern Ireland in an ‘intervening year’ if the Chief
Electoral Officer makes a recommendation by 15 April in that year,
which leaves a very short time for the requirements to be changed if
necessary to do so. The parliamentary time required for the affirmative
resolution procedure may result in no requirements being prescribed in
time for the summer recess in circumstances where the canvass activity
must begin in September of that year and concluded by early December
(see s.13(1)(a) of the 1983 Act).
b. The parliamentary scrutiny provided by the negative resolution procedure
is sufficient in circumstances where much of the content to be included
on the form is already set out in section 10(4A) of the 1983 Act.
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c. The Government notes that there is no requirement in Great Britain to
prescribe any requirements at all in relation to the form to be used for a
canvass. Accordingly, it is appropriate for a lower level of parliamentary
scrutiny to apply to the prescription of requirements as to the form and
content of a canvass form in Northern Ireland.
22.
Clause 13 also makes provision that allows the Secretary of State to require the
Electoral Commission to design a canvass form. This provision was included in the
Bill on request of the Electoral Commission. There is a power to make similar
provision in relation to Great Britain in section 9D(4) of the 1983 Act9, although
that power is not restricted to the conferral of functions in relation to a canvass
form. The purpose of this provision is to enable the Electoral Commission to
design forms for the canvass in both Great Britain and Northern Ireland to ensure
consistency across the UK. As this power is not legislative, it is not subject to any
formal procedure.
Clause 19: Chief Electoral Officer: performance standards
Power conferred on:
Secretary of State
Power exercised by:
Order made by statutory instrument
Parliamentary Procedure:
Affirmative resolution
23.
The Chief Electoral Officer for Northern Ireland (“CEO”) must report to the
Secretary of State each year on how he has discharged his functions. A copy is laid
before each House of Parliament. The report must include an assessment of the
extent to which the “relevant registration objectives” in Northern Ireland have
been met. This is an effective mechanism of supervision due to the Secretary of
State’s power to dismiss the CEO should he fail without reasonable excuse to
discharge his functions or should he be unable or unfit to carry out his functions.10
24.
In Great Britain, local authorities are responsible for the appointment of
registration officers.11 The standards of performance of registration officers in
Great Britain are set by the Electoral Commission. Sections 9A-9C of PPERA
gives the Electoral Commission the power to publish standards of performance for
registration officers, returning officers and counting officers, to require reports on
performance and expenditure from the relevant officers, and to publish
assessments of performance. Sections 9A-9C, PPERA do not extend to Northern
Ireland12.
25.
Clause 19 provides that the Secretary of State may make provision about objectives
or standards of performance to be met by the CEO, including in particular
provision about setting such objectives or standards, or assessing or reporting the
extent to which such objectives or standards have been met.
Section 9D was inserted by section 4 of the Electoral Registration and Administration Act 2013. It is not yet in force.
See sections 8 and 9, Northern Ireland (Miscellaneous Provisions) Act 2006.
11 S.8(2)-(4), Representation of the People Act 1983
12 See s.78(2)(b), EAA.
9
10
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26.
There are a number of reasons why provision about performance standards has
been left to delegated legislation rather than included in the Bill:
a. The direct management link between the Secretary of State and the CEO
means that any change to the mechanisms for review of the CEO’s
performance will be necessarily more complex and nuanced than the
management arrangements in place for registration officers elsewhere in
the UK. As a result, any provision on performance standards may need to
be introduced incrementally.
b. There are two principal options for making provision about performance
standards: (a) create a separate mechanism by which the CEO can agree
performance standards with the Electoral Commission and make
provision that the annual report of the CEO to the Secretary of State
must include an assessment of the extent to which those performance
standards have been met; or (b) extend the performance standards and
reporting requirements applicable in Great Britain to Northern Ireland
and remove the requirement on the CEO to report annually to the
Secretary of State. The political parties have been consulted on this issue
and their consensus is important. This power will allow provision to be
made when agreement on this issue can be reached.
27.
The power is subject to the affirmative resolution procedure because it includes
power to amend primary legislation.
Clause 20: Data sharing
Power conferred on:
Secretary of State
Power exercised by:
Order made by statutory instrument
Parliamentary Procedure:
Affirmative resolution
28.
Clause 20 amends section 53 of and Schedule 2 to the 1983 Act to apply to
Northern Ireland additional regulation-making powers relating to the sharing of
data obtained from individuals or other public authorities for the purpose of
electoral registration. Those provisions13 currently apply only in Great Britain
(although they extend to the UK). The powers are necessary to ensure that:
a. the Chief Electoral Officer is able to ensure that only those individuals
who are entitled to be registered to vote are included on the register;
b. the Chief Electoral Officer is able to ensure that the electoral register is
not used in order to create fraudulent identities or commit electoral
offences; and
The provisions were inserted by Schedule 2 of the Electoral Registration and Administration Act 2013. In their
current form, they apply only in Great Britain. Clause 20 amends the provisions so that they apply also in Northern
Ireland.
13
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c. the Chief Electoral Officer is are able to obtain information relating to
individuals who may be eligible to be registered to vote, in order to carry
out his duty to maintain the register (s.9, 1983 Act) and to meet the
relevant registration objectives (s.10ZB, 1983 Act).
29.
Before any information can be shared under those provisions, the Secretary of
State must consult the Electoral Commission, the Information Commissioner and
any other person the Secretary of State thinks appropriate.14 This provides an
additional safeguard in the exercise of these powers.
30.
The application of those additional data sharing provisions to Northern Ireland
means that the existing powers in paragraphs 1(4A)-(4B), 1(6)-(8), 11A(1A) and
13(1ZA) of Schedule 2 to the 1983 Act15 will no longer be necessary. This is
because paragraph 1A(1) of Schedule 2 will give the Chief Electoral Officer an
equivalent power to require information public authorities. Clause 20 repeals the
existing powers in paragraphs 1(4A)-(4B), 1(6)-(8), 11A(1A) and 13(1ZA) of
Schedule 2. An ancillary effect of this repeal is to remove the provision that
prevents onward disclosure to third parties of information received from public
authorities.
31.
These powers are subject to the affirmative resolution procedure (s.201(2), 1983
Act). This is consistent with the other regulation-making powers in Schedule 2 to
the 1983 Act.
Clause 21 and Schedule: Rules of Court
Power conferred on:
Rules Committees
Power exercised by:
Statutory Rules
Parliamentary Procedure:
Negative resolution (in some cases before Parliament; in others,
before the Northern Ireland Assembly)
32.
The schedule attached to this clause amends the rule-making procedure and the
parliamentary procedure (before Parliament or the Northern Ireland Assembly)
that are applicable to certain categories of court rules. In no case is the rule-making
procedure being relaxed. The changes substitute one parliamentary procedure for
another, or add a parliamentary procedure where there was not one before, and /
or give a control function to the Lord Chancellor or the Department of Justice.
The purpose of the changes is to provide greater consistency in rule-making
procedures for the different courts.
33.
Paragraphs 1 and 2 amend the parliamentary procedure for High Court, Court of
Appeal and Crown Court rules that deal with an excepted matter, as that term is
defined in section 4(1) of the 1998 Act. Currently such rules are subject to negative
resolution in the Northern Ireland Assembly. The amendment will make them
subject to negative resolution of either House of Parliament. This change is being
14
15
See section 53(8), as amended by the Electoral Registration and Administration Act 2013 and by clause 20(1).
Inserted by section 7 of the Northern Ireland (Miscellaneous Provisions) Act 2006.
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made to remedy an oversight in the Northern Ireland Act 1998 (Devolution of
Policing and Justice Functions) Order 2010 (SI 2010/976).
34.
Paragraph 3 inserts a parliamentary procedure for County Court rules, so that if
they deal with an excepted matter they are subject to negative resolution of either
House of Parliament; otherwise they are subject to negative resolution of the
Northern Ireland Assembly. Currently such rules are not subject to any
parliamentary procedure.
35.
Paragraphs 4 and 5 amend the rule-making powers for Magistrates’ Courts and
inquests. A relevant authority is designated who must allow or disallow rules
submitted to it, being the Lord Chancellor in the case of rules that deal with an
excepted matter, otherwise the Department of Justice. Currently such rules are not
subject to allowance by a relevant authority. If such rules deal with an excepted
matter they are subject to negative resolution of either House of Parliament;
otherwise they are subject to negative resolution of the Northern Ireland
Assembly. Currently such rules are not subject to any parliamentary procedure.
Clause 22: Amendment of powers under s. 75, Northern Ireland Act 1998
Power conferred on:
Secretary of State
Power exercised by:
Order made by statutory instrument
Parliamentary Procedure:
Affirmative resolution
36.
Clause 22 amends the powers under section 75(3)(a) and (d) of the 1998 Act,
which enable the Secretary of State to designate certain departments, corporations,
bodies or any other person (person etc.) as a public authority for the purposes of
that provision. The effect of designation is that the person etc. will be subject to
the statutory equality duty set out in section 75(1) and (2). The amendments made
by clause 22 enable the Secretary of State to designate a person etc. in respect of
certain of their functions only, in respect of (all or some of) their functions only
when exercised in a specified circumstance or for a specified purpose and in
respect of certain elements of the statutory equality duty only. The amendment
ensures that persons who it is currently considered cannot be designated (because
certain of their functions need to be excepted from the duty or because all or
certain of their functions need to be excepted from certain elements of the duty)
can be considered for designation in the future.
37.
The power in section 75 of the 1998 Act is not otherwise altered. No change is
made to the person upon whom the power is conferred, the type of instrument or
the parliamentary procedure.
Clause 23: Extension of powers to make subordinate legislation
Power conferred on:
Secretary of State
Power exercised by:
Order made by statutory instrument
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Parliamentary Procedure:
Affirmative resolution
38.
Amendments are being made to the powers in section 34(4) and 84(1) of the 1998
Act, so that different provision may be made for different areas about the conduct
of elections, including different provisions about the registration of persons
entitled to vote at an election. These changes are being made so that, for example,
a pilot programme for electronic registration of electors or electronic counting of
votes could be set up in one particular area.
39.
The powers in sections 34 and 84 of the 1998 Act are not otherwise altered. No
change is made to the person upon whom the powers are conferred, the type of
instrument or the parliamentary procedure.
Clause 24: Amendment of powers under paragraph 8, Schedule 1, Protection of
Freedoms Act 2012
Power conferred on:
Secretary of State
Power exercised by:
Order made by statutory instrument
Parliamentary Procedure:
Affirmative resolution where order amends or repeals primary
legislation, otherwise negative resolution
40.
Clause 24 amends the powers in paragraph 8 of Schedule 1, Protection of
Freedoms Act 2012, which enable the Secretary of State to make an order making
excepted or reserved provision (and transferred provision which is ancillary to that
and consequential provision) in relation to the retention, use and destruction of
fingerprints, DNA samples and profiles and footwear impressions (biometric data)
in Northern Ireland. At present, such an order can only be made if the Northern
Ireland Assembly (the Assembly) makes an Act in 2011 or 2012 dealing with the
retention, use or destruction of biometric data in Northern Ireland for transferred
purposes. (It is only when this legislation is made by the Assembly that the
Secretary of State can make certain further provision in relation to excepted and
reserved matters by order under paragraph 8.) Such an order can amend or repeal
any enactment. The amendment in clause 24 enables the order to be made if the
relevant Act is made by the Assembly in 2013 or 2014 (rather than 2011 or 2012).
The amendment is necessary because the Assembly did not pass the relevant
legislation before the end of 2012 and because the Assembly is expected to legislate
in 2013 or 2014.
41.
The power in paragraph 8 of Schedule 1, Protection of Freedoms Act 2012, is not
otherwise altered. No change is made to the person upon whom the power is
conferred, the type of instrument or the parliamentary procedure.
Northern Ireland Office
April 2013
11