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Northern Ireland (Executive Formation etc) Act 2019

The Northern Ireland (Executive Formation etc) Act 2019 (c. 22), colloquially known as the 2019 Northern Ireland bill, is an Act of the Parliament of the United Kingdom that provides for the extension of the period for forming a Northern Ireland executive until 13 January 2020. The bill also extends the powers of the Secretary of State for Northern Ireland during this time whilst imposing several conditions. The Act requires that the Secretary of State report regularly to parliament, designed to limit the ability of the sovereign to prorogue parliament, as well as providing for the legalisation of gay marriage in Northern Ireland (in line with the rest of the UK) and the liberalisation of abortion laws (in line with abortion rights in England and Wales) if no executive is formed by 21 October 2019.[1][2]

Northern Ireland (Executive Formation etc) Act 2019
Act of Parliament
Long title
Citation2019 c.22
Introduced by
Territorial extentUnited Kingdom
Dates
Commencement24 July 2019
Other legislation
Amends
Relates to
Status: Current legislation
History of passage through Parliament
Text of statute as originally enacted
Revised text of statute as amended

Contents

BackgroundEdit

Renewable Heat Incentive scandalEdit

 
Arlene Foster, leader of the Democratic Unionist Party and former First Minister.

The Renewable Heat Incentive (RHI) scandal related to the cost of a renewable energy scheme initiated by Arlene Foster during her tenure as Minister for Enterprise, Trade and Investment.[3] The scandal came to light in November 2016, when Foster was First Minister of Northern Ireland. Foster refused to stand aside during the enquiry, ultimately leading to the resignation of Martin McGuinness, deputy First Minister, which, under the Northern Ireland power-sharing agreement, led to the collapse of the Northern Ireland executive in January 2017.[4]

Collapse of the Northern Ireland ExecutiveEdit

 
Martin McGuinness, former leader of Sinn Féin and deputy First Minister.

Following the collapse of the Northern Ireland executive, snap elections were held. These elections were the first in the history of Northern Ireland where unionist parties did not win a majority: this has been attributed to the RHI scandal, the role of the DUP in Brexit and demographic shifts.[5] Under the Northern Ireland Act 1998 a further election must be held within six weeks if no executive is formed. Following the elections, talks were held and facilitated by the British and Irish Governments in order to restore the devolved administration in Northern Ireland. During this time there have been three Secretaries of State for Northern Ireland: James Brokenshire, Karen Bradley and Julian Smith, who have all failed to restore the executive. In order to prevent further re-elections the British Parliament passed the Northern Ireland (Ministerial Appointments and Regional Rates) Act 2017 and Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 which provided for further extensions to the deadline set in the 1998 act, as well legislating for devolved issues such as taxation. Following the 2018 bill, this 2019 bill was introduced to parliament to extend the deadline further.[2][6]

Brexit and prorogationEdit

Following the resignation of Theresa May as Leader of the Conservative Party, pro-Remain and moderate pro-Leave MPs were concerned that the frontrunner to replace her, Boris Johnson may consider proroguing parliament in order to force a no-deal Brexit. As this legislation was in the House during this time, Dominic Grieve and others saw it as having potential to act as a vehicle through which they could limit the right of the executive, Queen Elizabeth II, to order prorogation.[2][7] The effect of Brexit on the Irish border and the slow progress of talks to restore the Northern Ireland executive both served as reasons for amending the bill to provide for reports to parliament.[7]

LGBT rights in Northern IrelandEdit

In Northern Ireland, LGBT rights lag behind the rest of the United Kingdom, due to the petition of concern motion available to the socially-conservative and evangelical Democratic Unionist Party. As a result, same-sex marriages are not performed or recognised by the government in Northern Ireland and there remain gaps in legal protection for transgender individuals. However, with no Northern Ireland executive available to legislate on the issue, direct rule has been used as an instrument in order to equalise protection and recognition for LBGT individual across the union. Amnesty International and other organisations, including the Labour Party has considered this to be an important issue to legislate on in Westminster; others, such as the Conservative Party believed it to be an issue for the people and assembly of Northern Ireland.[2]

Abortion rights in Northern IrelandEdit

Abortion is only legal in Northern Ireland if "there is a risk of real and serious adverse effect on her physical or mental health, which is either long term or permanent", a status achieved through a series of British court cases during the period of direct rule from Westminster, where previously all cases of abortion were illegal.[8] This differs from the rest of the UK as the Abortion Act 1967 does not apply to Northern Ireland, thus the Offences Against the Person Act 1861 retains its provisions against infanticide including nearly all cases of abortion.[2][9] The Northern Ireland Assembly has been unable to legislate on the issue effectively, again due to the petition of concern available to the Democratic Unionist Party.[10]

ContentEdit

List of provisionsEdit

The bill makes several provisions within it:[1]

  • Extends the deadline for the formation of the Northern Ireland Executive until 21 October 2019;
  • Allows the Secretary of State to further extend the deadline until 13 January 2020;
  • Requires the Secretary of State to report to parliament on or before the 4 September 2019, 9 October 2019 and then fortnightly until 18 December 2019;
  • Requires the Secretary of State to make regulations to legalise same-sex marriage, providing no executive has been formed by 21 October 2019;
  • Requires the Secretary of State to make regulation to liberalise abortion law, providing no executive has been formed by 21 October 2019;
  • Requires the Secretary of State to make regulation to provide for a compensation scheme for victims of the Troubles;
  • Requires that the government provide reports to parliament on a number of issues facing Northern Ireland, and allow time for them to be debated in the Chamber within 5 calendar days of the release of the report, as below:

Extension periodEdit

The bill was introduced to allow for a de facto extension period until 13 January 2020. This allowed for ongoing negotiations involving Sinn Féin and the DUP, alongside the British and Irish Governments. Without the agreement of both the largest parties of each of Northern Ireland's communities, no executive can be formed.[2]

Reports to ParliamentEdit

 
Dominic Grieve, whose amendment to the bill added the provisions designed to prevent the prorogation of parliament.

The reports to parliament provided for by the Act were introduced as part of an amendment by Dominic Grieve. The aim of the amendment was to make it functionally impossible to prorogue parliament, but as a royal prerogative power, it is constitutionally difficult to do so de jure. By requiring reports to be made to parliament, and requiring time to debate them within five calendar days, it prevents the monarch from proroguing parliament as parliament needs to be sitting to debate. However, the principle of parliamentary sovereignty in this regard is yet to be tested in British or Commonwealth courts, and it is unclear as to whether this could be fulfilled by written report, therefore not requiring parliament to be sitting in order for MPs to receive the reports. Critics have also claimed that these amendments were only tenuously linked to the purpose of the bill and therefore not appropriate, as their true function was not linked to the governing of Northern Ireland, but instead was designed to prevent a future Johnson ministry from proroguing parliament to force through a new negotiated deal or a no-deal Brexit.[2][7] On 28 August 2019, Boris Johnson advised the Queen to prorogue parliament between 12 September and 14 October 2019, thereby spurring a number of court cases, with many of the objections centred around this provision within the Act.[11] However, as 14 October is within 5 calendar days of 9 October, when the report is due, it is unclear if this provision will halt the prorogation, even if it were legally sufficient to do so.

Marriage equality and abortionEdit

Further amendments provided for same-sex marriage and liberalisation of abortion laws. This would bring Northern Ireland into line with the rest of the UK on both social issues, ironically overruling the strongly unionist DUP's historic opposition to LBGT and women's rights, due to their strong links to the Free Presbyterian Church of Ulster. However, this would only come into force if no executive can be formed by 21 October 2019 and could be overruled by a future Northern Ireland Assembly.[6][12] The DUP described these additions as "undermining" devolution, whilst the Irish republican Sinn Féin welcomed the move.[6][12] Specifically, these provisions require that the Secretary of State introduce legislation to extend the provisions of the Marriage (Same Sex Couples) Act 2013 to Northern Ireland, and to implement the recommendations of the CEDAW report on the UK (here), on or after 21 October 2019 providing no executive has been formed.[1][2]

Legislative historyEdit

Act in lawEdit

The Act has formed part of the basis for two of several court cases around the prorogation advised by Boris Johnson:

ReferencesEdit

  1. ^ a b c "Northern Ireland (Executive Formation etc) Act". www.legislation.gov.uk. Retrieved 2019-08-29.
  2. ^ a b c d e f g h Scott, Jennifer (2019-07-08). "Why there's more to the Northern Ireland bill". Retrieved 2019-08-31.
  3. ^ Macauley, Conor (17 January 2017). "RHI scandal: PSNI considering request for fraud investigation". BBC News.
  4. ^ "Martin McGuinness resigns as NI deputy first minister". BBC News. 10 January 2017.
  5. ^ "45.7%: How Northern Ireland lost its Unionist majority, and Sinn Féin regained their mojo". Coffee House. 2017-03-04. Retrieved 2019-08-31.
  6. ^ a b c McCormack, Jayne (2019-07-15). "Northern Ireland bill - what happens next?". Retrieved 2019-08-31.
  7. ^ a b c correspondent, Peter Walker Political (2019-07-18). "What amendments aimed at halting no-deal Brexit will MPs be voting on?". The Guardian. ISSN 0261-3077. Retrieved 2019-08-31.
  8. ^ "Guidance for HSC professionals on termination of pregnancy in Northern Ireland" (PDF). www.health-ni.gov.uk. Department of Health (Northern Ireland). 24 March 2016. pp. 36–37. Retrieved 2 August 2019.
  9. ^ The Abortion Act 1967, section 7(3)
  10. ^ Devenport, Mark (2018-01-31). "SF would like petition of concern changes". Retrieved 2019-08-31.
  11. ^ a b editor, Severin Carrell Scotland (2019-08-13). "Brexit: judge fast-tracks challenge to stop Johnson forcing no deal". The Guardian. ISSN 0261-3077. Retrieved 2019-08-29.
  12. ^ a b "Gay marriage vote for NI 'breaches devolution'". 2019-07-10. Retrieved 2019-08-31.
  13. ^ O'Carroll, Lisa; Carrell, Severin (2019-08-28). "Gina Miller's lawyers apply to challenge Boris Johnson plan". The Guardian. ISSN 0261-3077. Retrieved 2019-08-29.