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Devolved Powers

The Northern Ireland Act 1998 as amended, in effect comprises the Constitution of Northern Ireland.  It declares that Northern Ireland in its entirety remains part of the United Kingdom and shall not cease to be so without the consent of a majority of the people in Northern Ireland.

There is provision for a poll in accordance with Schedule 1 to ascertain the wishes of the majority of people.  If the wish expressed by a majority is that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland, the Secretary of State shall lay before Parliament proposals to give effect to that wish as may be agreed between the United Kingdom Government and the Government of Ireland.

The legislation was commenced by a devolution order.  It has been suspended by legislation and recommenced on a number of  occasions. As of mid 2018, the institutions are inoperative, due to the failure by the two main parties to constitute a government..

Legislation sets out the competence of the Northern Ireland Assembly and Government.  There is provision whereby a reserved matter may become a transferred matter and vice versa.  Responsibility for justice was not devolved until 2011.

In relation to the Assembly cross community support requires the support of the members voting with a majority of designated nationalists and a majority of designated unionists or the support of 60 percent of the members voting with 40 percent each of designated nationalists and designated unionists voting.

Standing orders may provide that a member of the Assembly who is designated as a Nationalist or Unionist may change his designation only if he becomes a member of a different political party or he ceases to be a member of any political party, or not being a member of a political party, he becomes a member of a political party.

The Assembly makes laws in the form of Acts.  A Bill becomes an Act when it has been passed by the Assembly and received Royal Assent.  It receives Royal Assent on the day on when Letters Patent of the Great Seal of Northern Ireland signed with Her Majesty’s hand signifying her consent is notified to the Presiding Officer.

The validity of proceedings relating to the enactment of an Act of the Assembly may not be questioned in any legal proceedings.

The Parliament of the United Kingdom retains power to make laws for Northern Ireland.  An Act of the Assembly may modify any provision made by or under an Act of Parliament in so far as it is part of the law of Northern Ireland.

The competence of the Assembly is limited as follows.  It may not enact any law in relation to anywhere other than Northern Ireland, or confer or remove functions exercisable other than in or as regards Northern Ireland.

The Assembly may not make legislation which is .

  • incompatible with the European Convention and Human Rights;
  • incompatible with European Community law;
  • discriminates against persons on the grounds of religious belief or political opinion;

It may  not modify the  entrenched enactments in particular the European Communities Act, the Human Rights Act, the guarantee of judicial independence and matters regarding judicial appointments.

The consent of the Secretary of State is required in relation to bills which deal with an excepted matter or which is ancillary to other reserved matters or provisions dealing with a reserved matter.

The Minister who introduces a bill must make a statement that it is within the competence of the Assembly. The Presiding Officer may prevent a Bill being introduced, if he decides that it is not within the legislative competence of the Assembly.

The Attorney General may refer the question of whether a  bill is within the competence of the Assembly  for decision to  Supreme Court.  This may be done at any time within four weeks beginning with the passing of the Bill or a period of four weeks beginning with the subsequent approval of the Bill in accordance with standing orders.

Where a reference has been made by a court to the Supreme Court; or a reference has been made by the Supreme Court to the Court of Justice of the European Union and neither has been disposed of, the Assembly may resolve that it wishes to reconsider the Bill.  In this case, the reference may be withdrawn.

If the Assembly makes provision for a general debate on a Bill with an opportunity for members to vote on its general principles for consideration and opportunity to vote on the details of a Bill for a final stage at which the Bill may be passed or rejected but not amended.

Standing orders may be made in relation to different types of Bill. Standing orders must make provision for reference of the matter to a Committee for the  consideration of the Bill by the Committee.  They must provide that the Presiding Officer send a copy of each Bill to the Northern Ireland Human Rights Commission and enable the Assembly to ask the Commission, where the Assembly thinks fit to advise whether the Bill is compatible with human rights including European Convention on Human rights.

Standing orders shall provide an opportunity for reconsideration of a Bill after its passing if the Supreme Court decides that it would not be within the competence of the Assembly.If the Bill is withdrawn as above, a decision is made about the Bill by the Secretary of State as below or a motion is passed by either House of Parliament as below.

The Secretary of State submits bills for Royal Assent.  The Secretary shall not submit a Bill when the Attorney General is entitled to make a reference above or if a reference has been made but not decided or disposed of by the Supreme Court. If the Supreme Court decides that the Bill would not be within the competence of the Assembly or reference made in relation to the Bill is withdrawn, the Secretary of State shall not submit it for Assent.

The Secretary of State may, unless he consents to it, decide not to submit for Royal Assent a Bill containing a provision which the Secretary of State considers deals with an excepted matter or is ancillary to other provisions dealing with reserved or transferred matters or which the Secretary of State considers deals with a reserved matter.

The Secretary of State may decide not to submit for Royal Assent a Bill which contains a provision which he believes would be incompatible with international obligations, with the interests of defence or national security or with the protection of public safety or public order; or would have an adverse effect on the operation of the single market of goods and services within the United Kingdom.

Where a Secretary of State consents to a Bill dealing with an excepted matter or a reserved matter other than incidentally, he shall have it submitted for Royal Assent unless he lays it before Parliament for 20 days and 20 days has passed without a motion against having been passed and not being rejected or withdrawn.

The above does not apply where the Secretary of State considers that the Bill contains no provision which deals with an excepted or reserved matter except where it is ancillary to a transferred matter. It does not apply to a Bill if the Secretary of State considers that by reason of urgency it should be submitted for Royal Assent without being laid before Parliament.  If an Act is subject to the motion in Parliament rejecting it, it may be repealed by order in Council.  A notice of motion must be signed by at least 20 members.

The following are excepted matters in respect of Northern Ireland:

  • the Crown, and succession to the Crown; this does not apply to the executive functions of the Northern Ireland Executive Crown Property foreshore, natural resources, et cetera.
  • the Parliament of the United Kingdom elections and disqualifications for elections.
  • international relations with territories outside the United Kingdom, European Communities and other international organisations

It includes matters concerning:

  • defence of the realm;
  • trading with the enemy;
  • armed forces of the Crown;
  • control of nuclear, biological and chemical weapons;
  • dignities and titles of honour;
  • treason but not powers of arrest or criminal procedure;
  • nationality; immigration, including asylum and related matters;
  • taxes and duties under law applying to the United Kingdom as a whole;
  • stamp duty levied in Northern Ireland before the appointed day; and
  • similar taxes or duties
  • matters associated with national insurance, the national insurance funds, rebates from it, rights to return to the state pension scheme, payments out of public money to purchase money pension schemes;
  • tax credits,
  • appointment and removal of judges, resident, magistrates, county court judges, justices of the peace, coroners, Chief and Social Security Commissioners, Chief and Child Support Commissioners, President of the Lands Tribunal for Northern Ireland, the Supreme Court,
  • elections, including the franchise, in respect of the Northern Ireland Assembly, European Parliament and district councils,
  • political parties, elections and referendum legislation including political donations,
  • coinage, legal tender and bank notes,
  • national savings bank,
  • national security service,
  • government communications, official secrets,
  • nuclear energy and installations, nuclear safety,
  • regulation of sea-fishing outside of the Northern Ireland zone except in relation to Northern Ireland fishing boats,
  • regulation of activities in outer space,
  • Northern Ireland Constitution Act
  • most of the provisions of the Northern Ireland Act itself

Reserved matters include

  • conferral of functions in relation to Northern Ireland on any Minister of the Crown,
  • property belonging to Her Majesty in right of the Crown, department of the Government of the United Kingdom or held in trust for Her Majesty,
  • navigation, including merchant shipping, but not harbours or inland waters,
  • civil aviation but not aerodromes,
  • foreshore and the seabed and subsoil and natural resources (except harbours),
  • domicile,
  • disqualification for membership of the Assembly; privileges, powers and immunities of the Assembly,

Formerly, the criminal law; offences and penalties; prevention and detection of crime, prosecutions, treatment of offenders and compensation out of public funds were excepted.

The includes

  • the maintenance of public order, including powers, authorities and privileges for that purpose on constables and armed forces of the Crown or other persons;
  • the Parades Commission
  • the establishment, organisation and control of the PNSI, any other police force or the Northern Ireland Policing Board;
  • cooperation between the PSNI and the Garda Síochána in respect of transfers, secondments, and training of officers; communications, joint investigations and disaster planning,
  • firearms and explosives,
  • civil defence,
  • rights of appeal to the Supreme Court,
  • legal aid for appeals from Supreme Court,

It also includes matters, other than those specified relating to the

  • Northern Ireland Courts, courts of summary jurisdiction (including magistrates’ courts, county courts),
  • including procedure, evidence, appeals, juries, costs, legal aid, registration, execution and enforcement of judgments but not bankruptcy, insolvency, winding-up and regulation of solicitors, functions and procedures of the civil service commission for Northern Ireland.
  • matters including procedure and appeals relating to the Chief and other Social Security Commissioners or Chief and other Child Support Commissioners
  • import and export controls and trade with places outside the UK,
  • the National Minimum Wage Act,
  • certain provisions in relation to occupational pension scheme and the pension ombudsman.
  • financial services including investment business, banking, deposit-taking, collective investment schemes, financial markets.  This does not apply to credit unions, Industrial and Provident Societies, companies and investment companies.
  • Money laundering, regulation of anti-competitive practices and agreements;
  • abuse of dominant position;
  • Intellectual property,
  • units of measurement,
  • telecommunications;
  • wireless telegraphy;
  • provision of programme services;
  • internet services;
  • National Lottery,
  • surrogacy matters;
  • matters concerning human fertilisation and embryology;
  • human genetics;
  • areas in which the industry may qualify under industrial development legislation.

Reserved matters

Reserved matters may be transferred subject to the above.  Special provisions apply to the transfer of policing and justice matters

Reserved matters including conferral of functions in Northern Ireland and any Minister of the Crown, navigation including shipping but not harbours and inland waters, civil aviation but not aerodromes.

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