The Nature of Devolution in Scotland and Northern Ireland: Key Issues of Responsibility and Control
by Brigid Hadfield
75. See In re Martin McGuinness NIHC unreported judgement delivered 3 Oct 1997, concerning the consequences of the refusal of the two Sinn Fein Westminster MPs to take the oath or affirmation of allegiance.
76 Special rules apply where a Minister or party has been excluded because of non commitment to non-violence and exclusively peaceful and democratic means or breach of the pledge of office. See also s 18(3), (10) and (11).
77. The Bill, as originally published, made no provision for Junior Ministers. See now s 19 which was inserted at the HL Committee Stage and which enables the FM and DFM acting jointly to determine the number and functions of Junior Ministers, the procedure for the filling of vacancies and when they shall cease to hold office, etc. Junior Ministers are required to take the pledge of office. A determination under this section shall not take effect until approved by an Assembly resolution (see also s 42). The section imposes no numbers limitation and the d'Hondt formula does not apply. Junior Ministers, like the NI Ministers, cannot serve as chairpersons or deputy chairpersons of a Committee. Lord Dubs in moving the amendment, which had received the "strong support" of the political parties said, "There is nothing specifically in the (Belfast) Agreement about junior Ministers, although they are provided for in the Scotland Bill and a feature of previous devolved governments in Northern Ireland, as well of course, as Westminster" (HL Debs 19 Oct 1998, col. 1277)
78. Section 64 deals with draft budgets
79 Both the Agreement and the Act requires these two offices to operate as one in many areas of decision making.
80. Section 14, which includes certain powers and duties to withhold the Bill on grounds of legislative competence. Does the principle of expressio unius apply, precluding the Secretary of State from withholding the Bill on any other grounds?
81. Brazier, "Scottish Government" at 218. He suggests that one alternative to the Westminster government advising the withholding of the Royal Assent would be for it to advise the giving of the Royal Assent, but then to introduce legislation into Westminster negating the devolved Act. The Secretary of State for Scotland Mr Donald Dewar, said in a debate on the Scottish Devolution White Paper: "Legislation passed by the Scottish Parliament will not need to go to the Secretary of State for consideration and approval before it is passed to the Queen for Royal Assent. It is important that we do not have such overriding decisions. It would have sullied the atmosphere, and made for great difficulties." (HC Debs 31 July 1997, col 462). Cf Northern Ireland? The Scotland Act itself does not, however, preclude "Westminster" from advising the Queen on such matters.
82. Hence the significance of the intergovernmental arrangements to be discussed below.
84. The Bill was the Local Government Bill (NI) which provided for the abolition of proportional representation in local government elections. For a fuller account, see Hadfield, Constitution of Northern Ireland, 49-51, and the other references therein.
85 A consideration of devolution, the courts and vires issues, outside the remit of this article, is none the less of considerable importance too. For a further illustration of the NI experience in Scotland, see Gallagher v Lyon (1937) AC 863, Scotland Act 1998 s 29(3) and Sch 4 para 3, and Lord Sewel, HL Debs 21 July 1998, cols 818-822.
86. The Northern Ireland Act 1998, ss 23, 44 and 45 and the Belfast Agreement,
Strand 1, paras 7 to 10 (at 6) provide the detail on the "shadow" committees.
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