The Nature of Devolution in Scotland and Northern Ireland: Key Issues of Responsibility and Control
by Brigid Hadfield
THE EDINBURGH LAW REVIEW Vol.3 1999 (Published by the Faculty of Law of Edinburgh University)
The Northern Ireland Act 1998 contains three categories of legislative power excepted, reserved and transferred. This has been the standard nomenclature with regard to devolution for Northern Ireland but is perhaps now unfortunate given the usage of the term 'reserved' in the Scotland act. Excepted matters, listed in Sch. 2, are under s6(2)(b) permanently outside the competence of the Assembly, unless they are defined under s 6 (3), ancillary to other provisions dealing with a reserved or transferred matter. Section 6 also precludes the Assembly from legislating 'extra territorially' (although of course, cross border arrangements with the Republic of Ireland will be facilitated and required under the legislation), or in a way which is incompatible with Community law or the European Convention on Human Rights or which (even if not so incompatible) discriminates against any person or class of person on the ground of religious belief or political opinion or from modifying an entrenched enactment. (60) Excepted matters, essentially relate to matters of national concern which are most appropriately dealt with by Westminster. The substance of Sch 2 is similar but not identical to the Scottish category of reserved matters, although under the Northern Ireland Act no provision is made for moving a matter out of the excepted category. Reserved matters, under Sch3 of the Northern Ireland Act, are by contrast matters on which the Assembly can legislate but only with the consent of the Secretary of State (s7(b)), and Westminister (61) unless the reserved matter is ancillary only. The reserved category includes (62) public order, policing and the criminal law (63). All other matters are transferred matters (64). Section 4(2) and (3) of the Act enable any reserved matter to become a transferred matter - and vice versa - by way of Westminster Order in Council always provided that the Assembly has passed (with cross community support) a resolution to that effect. Given the more extensive range of powers currently retained at Westminster for Northern Ireland as compared with Scotland, there will, at least in the early days (or years) of devolution, be a more extensive role for the Secretary of State for Northern Ireland than for the Scottish Secretary. This in turn will mean that Northern Ireland representation at Westminster - currently eighteen MPs (65) - is less likely to be reduced, at least during this interim period (if such it be), when the reserved powers are (primarily) Westminster's overall responsibility. The Act itself makes no mention of this matter; but in the role of Northern Ireland MPs the Agreement itself in para 33 of Strand 1 makes it clear that the Select Committee on Northern Ireland Affairs (66) and the Northern Ireland Grand Committee (67) will continue to operate. The remit of the Select Committee, being concerned with the responsibilities falling to the Secretary of State will, after devolution, be confined to reserved and (where relevant) excepted matters. Section 85 of the Act itself retains in part the almost completely indefensible method (68) of legislating for reserved matters by way of Order in Council, although with some welcome modifications, including consultation with the Assembly on proposals for draft Orders in Council, enhanced Parliamentary scrutiny, and an understanding that any particularly contentious or significant issues will be legislated on by way of a Bill. 'Excepted' matters will, for both Scotland and Northern Ireland be legislated on by Act of the Westminster Parliament.
The life of the Northern Ireland Assembly, like that of the Scottish Parliament
if four years, although the next Assembly election is not scheduled (under
s 31(2) until 1 May 2003. This is because the Assembly for the first nine
months of its existence at least will not have legislative powers. Under
clause 24 of the Bill as originally published (now s 31) subsection (4)
empowered the Queen (that is effectively, the Secretary of State) to dissolve
the Assembly prior to the expiry of the four years and thus (69) cause an
'early' general election to be held if it appeared that the First and Deputy
First Ministers and the other Ministers were not able to carry out their
functions, or, if they were to resign, that those who might succeed them
were also not able to do so, or if 'it (was in the public interest that
the Assembly should be dissolved'. The vast amount of control that such
a power would vest in the Secretary of State clearly raises such serious
problems about trust in a devolved government or indeed in the power of
the devolved government to operate in any way independently of Westminister
that deletion of that power became inevitable. These provisions on elections,
both ordinary and extraordinary, now stand identical to those in the Scotland
Act, the proposed extraordinary proragation power (70) also being deleted
from the Bill at the Lords' Committee stage. |
