4 June 1992

WESTMINSTER LINKS ON NON-TRANSFERRED MATTERS

Discussion Paper

1. The parties have so far concentrated on how institutions in Northern Ireland would deal with transferred matters. The statement of 26 March 1991 also envisaged that discussion of relationships within Northern Ireland in Strand 1 would include the relationship between any new institutions there and the Westminster Parliament.

2. Some matters (''non-transferred matters'') will remain the responsibility of the UK Government and Parliament. This paper suggests some questions which the parties may wish to consider on:

- how legislation might be made on non-transferred matters

- how executive functions on non-transferred matters might be scrutinised at Westminster.

3. Some of these questions raise wider issues including, for example, procedure in the UK Parliament at Westminster. These cannot be resolved by the Talks participants alone. But the parties might like to consider what proposals they would together wish to put to the other bodies with an interest.

4. The procedures under the Northern Ireland Constitution Act 1973 are taken as the starting point. They are described in paragraphs 4-7 and Annex B of the discussion paper 'Legislative Procedure for Northern Ireland'.

A: EXCEPTED AND RESERVED CATEGORIES

5. The Constitution Act 1973 divides non-transferred matters into two:

- Excepted matters. The assumption at this stage is that all such matters remain the responsibility of the UK Parliament and Government for the foreseeable future. It would require fresh constitutional legislation to move any excepted matter to another category.

- Reserved matters. For the time being, these would remain the responsibility of the UK Parliament and Government, but any reserved matter can be moved into the transferred category by Order in Council.

B: LEGISLATION

Excepted matters

6. Primary legislation on excepted matters must be by Bill in the Westminster Parliament except

- if it is ''ancillary'' to legislation on transferred or reserved matters; or

- if it deals with elections (but not the franchise) and boundaries for local authorities, when an affirmative resolution Order in Council under section 38(1) of the Constitution Act is possible.

7. There is no requirement for the Assembly or other institutions in Northern Ireland to be consulted on legislation on excepted matters.

8. Do the parties wish to propose any changes to the way in which legislation on excepted matters is handled?

Reserved matters

9. Once political institutions in Northern Ireland have assumed responsibility for transferred matters, the Constitution Act 1973 envisages three possible methods of primary legislation on reserved matters:

- Bill in the Westminster Parliament (either as a separate Northern Ireland Bill, or as part of a UK-wide Bill); or

- Measure in the Assembly, but subject (unlike transferred matters) to the Secretary of State's consent and Parliamentary scrutiny by negative resolution;

- Order in Council under section 38(1), subject to affirmative resolution.

10. There is no requirement for the Assembly or other institutions in Northern Ireland to be consulted about legislation on reserved matters by Bill or by Order in Council. But the possibility of legislation by the Assembly on reserved matters means that the Assembly could consider some reserved legislation in detail. If he wished, the Secretary of State could also refer a Proposal for a draft Order in Council on a reserved matter to the Assembly for its comments.

11. Legislation by the Assembly on reserved matters would be subject to the consent of the Secretary of State. If hewere [sic] to consent, then (unlike legislation on transferred matters) it would have to be laid before Parliament at Westminster. Either House could veto it by negative resolution.

12. If reserved matters are retained, legislation by Bill at Westminster will always be possible. But should there also be the possibility of legislation on reserved matters by new political institutions in Northern Ireland?

13. If so, do the parties wish to propose any changes to the arrangements for scrutiny of such legislation by the UK Government and Parliament?

14. The possibility of legislation on reserved matters by Order in Council even after responsibility for transferred matters has been assumed by new political institutions in Northern Ireland, was added by the Northern Ireland Act 1982. The notes on clauses distributed to MPs at the time explain that:

''Given the pressure on the legislative timetable, it may be difficult to find time at Westminster for a Bill on a ''reserved'' matter, and it may be inappropriate or impracticable for the Assembly to pass a Measure on the ''reserved'' matter in question."

15. The pressures on the legislative timetable at Westminster still exist. There are also difficulties in making extensive amendments to Bills to take account of Northern Ireland's different institutions, statute book and circumstances. But if Orders in Council were still necessary on reserved matters, there may be ways in which they could be opened to greater scrutiny.

16. For example:

- Should there be arrangements for widespread public consultation on proposals for draft Orders?

- Should new political institutions in Northern Ireland be able to make recommendations for amendments to proposals for draft Orders?

- Should new political institutions in Northern Ireland be invited to legislate first? An Order in Council might then only be possible if this invitation were declined, or the resulting Northern Ireland legislation were not satisfactory to the UK Government.

- Are there changes to procedures for considering draft Orders in Council in the UK Parliament which the parties wish to propose?

C: SCRUTINY OF EXECUTIVE FUNCTIONS

17. The Secretary of State will remain responsible for a range of executive functions in the non-transferred fields.

18. Discussion papers already circulated on ''A Local Administration and Finance'', and ''A Local Administration and the European Community'' discuss some of the ways in which Northern Ireland institutions could scrutinise and advise the Secretary of State on some of these functions. There is also the question of the role of new political institutions in Northern Ireland in relation to security.

19. The Secretary of State will remain accountable to the UK Parliament for his executive functions. The existing Parliamentary Select Committees can already consider matters equivalent to their main areas of interest which are within the responsibilities of the Secretary of State for Northern Ireland.

20. Nevertheless the House of Commons Procedure Committee, in its report on the working of the Select Committee system published October 1990, in principle favoured a specific Northern Ireland Select Committee. But it did not recommend it then because of the political development process underway in Northern Ireland.

21. The Government's response said:

''The Government accepts that, in principle, a select committee concerned solely with the work of the NIO and Northern Ireland Departments may be desirable in order to ensure that Northern Ireland matters receive the parliamentary scrutiny they deserve. However, the need to consider further the desirability and practicability of a territorial select committee and the extent to which its establishment would be supported by elected representatives from both sides of the community in Northern Ireland has led the Government to conclude, in line with views of the Procedure Committee, that now is not the right time to agree to the establishment of a Select Committee on Northern Ireland Affairs.

Nonetheless, the Government will continue to keep all aspects of the matter under review, including the difficult question of the manning of such a committee ...''

22. The establishment of such a Committee is ultimately a matter for the House of Commons. But if a Northern Ireland Select Committee were established, and there were new political institutions in Northern Ireland, what do the parties think should be the role of the Select Committee?

23. For example:

- Should it have the same scrutiny role as other Select Committees?

- Might it have other functions? If so, what?

- What matters should it cover?

- What, if any, role should it have in respect of transferred matters in Northern Ireland?

- How might it be composed?

Northern Ireland Office

4 June 1992

• HMG Westminster Links Paper (introduced on 1992-06-05 10:00:00 - CREATE_FROM - e898337) [This document]

• HMG Westminster Links Paper (introduced on 1992-06-05 10:00:00 - CREATE_FROM - e898337) [This document] [view current proposal at this moment]