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(iv) Devolution under the Northern Ireland Act 1998
The following account of the devolutionary scheme of the Northern Ireland Act
1998 is given on the (perhaps overly optimistic?) basis that its essential features
may endure “ albeit with whatever modi¬cations that may yet be agreed and
embodied in legislation amending the Act.
The purpose of the Northern Ireland Act 1998 was to give legal e¬ect to
the substantive provisions of the Belfast Agreement in their entirety, estab-
lishing a polity in which power would be shared and opposed viewpoints
accommodated.
238 British Government and the Constitution


Strand One of the Agreement, setting out the terms of the proposed devolu-
tionary settlement, was closely adhered to in the Act. The system of devolution
adopted for Northern Ireland drew on the previous scheme of devolved gov-
ernment under the Northern Ireland Constitution Act 1973 and on the model
of the Scotland Act 1998.
The Northern Ireland Assembly has 108 members, elected for a four-year
term by the single transferable vote system, each of the eighteen Northern
Ireland parliamentary (Westminster) constituencies returning six members.
The Assembly has powers of primary legislation in respect of all transferred
matters, that is, all matters that are not ˜excepted™ or ˜reserved™ in terms of the
Act (Schs 2 and 3 respectively). Transferred matters include the wide range of
social and economic matters that were within the responsibility of the six
Northern Ireland departments immediately prior to devolution. These matters
include agriculture and rural development, arts and culture, economic devel-
opment, education, the environment, health, social services, training and
employment. (The Northern Ireland departments were to continue in exis-
tence, subject to the power of the Assembly to transfer functions between them
or to create or dissolve departments.)
The excepted matters listed in Schedule 2 are not within the competence of
the Assembly and cannot be transferred to it (otherwise than by Act of
Parliament amending the Northern Ireland Act). They include international
relations and relations with the European Communities, defence and the armed
forces, national security, the appointment and removal of judges, taxation, elec-
tions and the main provisions of the Northern Ireland Act itself. The Act
includes some further speci¬c limitations of the Assembly™s competence.
Certain enactments are ˜entrenched™ by section 7 of the Act, so that they may
not be modi¬ed by an Act of the Assembly (or by subordinate legislation made
by a Northern Ireland minister): these include the European Communities Act
1972 and the Human Rights Act 1998. An Act of the Assembly is outside com-
petence if it is incompatible with a Convention right under the Human Rights
Act or with Community law or if it discriminates against persons on the ground
of religious belief or political opinion: section 6(2).
The reserved matters listed in Schedule 3 are not within the competence of the
Assembly but are capable of being transferred. They include criminal justice and
policing, public order, ¬rearms and explosives, ¬nancial services and markets,
import and export controls, intellectual property, telecommunications and
broadcasting, and consumer safety. Transfer of reserved matters to Assembly
competence may be e¬ected by Order in Council, provided that the Assembly
has passed, with cross-community support (see below), a resolution requesting
the transfer and a draft of the order has been approved by each House of
Parliament. (Removal of a transferred matter to the reserved list may be e¬ected
in the same way.) The possibility of transfer from the reserved list introduces an
element of ¬‚exibility into the devolution settlement. Additional ¬‚exibility ensues
from provisions of the Act which enable the Assembly to legislate on a reserved
239 Devolution and the structure of the UK


matter with the consent of the Secretary of State given in any particular instance,
subject to parliamentary controls. (See ss 8, 10, 14 and 15.)
The Belfast Agreement provided for safeguards ˜to ensure that all sections of
the community can participate and work together successfully™ in the Assembly.
The Act accordingly provides that certain important decisions of the Assembly
may be taken only with ˜cross-community support™. The mechanism for
achieving this requires that Assembly members must identify themselves and
be designated as ˜Nationalist™ or ˜Unionist™ (or ˜Other™). ˜Cross-community
support™ is de¬ned as follows (s 4(5)):
(a) the support of a majority of the members voting, a majority of the desig-
nated Nationalists voting and a majority of the designated Unionists voting
[parallel consent]; or
(b) the support of 60 per cent of the members voting, 40 per cent of the desig-
nated Nationalists voting and 40 per cent of the designated Unionists voting
[weighted majority].
Parallel consent is the method stipulated for the joint election of the First
Minister and Deputy First Minister. Cross-community support in either form
is required for the election of the Presiding O¬cer of the Assembly and, among
other matters, for the making of Assembly standing orders, exclusion of minis-
ters from o¬ce and approval of the annual budget. In addition, a petition by
thirty members of the Assembly on a matter of concern to them ensures that an
Assembly vote on the matter shall require cross-community support (s 42).
Questions of vires arising in relation to Assembly legislation are dealt with in
the Act (ss 9“12 and Sch 10) in a manner similar to the corresponding provi-
sion made in the Scotland Act 1998 (see above).
Executive authority in transferred matters is exercised on behalf of the
Assembly by a First Minister and Deputy First Minister and up to ten Northern
Ireland Ministers. The number and functions of ministerial posts are deter-
mined by the First Minister and Deputy First Minister acting jointly, subject to
approval by the Assembly on a cross-community basis.
The First Minister and Deputy First Minister are elected jointly by the
Assembly, by parallel consent, in e¬ect so as to represent, respectively, the largest
Unionist and the largest Nationalist party. The remaining ministerial posts are
allocated in proportion to party strengths in the Assembly (in accordance with
a formula known as the ˜d™Hondt system™, set out in section 18). Statutory com-
mittees of the Assembly are appointed ˜to advise and assist each Northern
Ireland Minister in the formulation of policy™ (s 29). They scrutinise the work
of ministers and their departments and can initiate legislation. The person who
chairs a statutory committee must not be of the same party as the minister.
A coordinating Executive Committee of the Assembly consists of all
Northern Ireland Ministers presided over jointly by the First Minister and
Deputy First Minister. It agrees on a policy programme and budget for each
year, subject to approval by the Assembly on a cross-community basis.
240 British Government and the Constitution


The First Minister, Deputy First Minister and Northern Ireland Ministers
(and also any junior ministers appointed in accordance with section 19) must
a¬rm the Pledge of O¬ce (set out in Schedule 4). This includes a ˜commitment
to non-violence and exclusively peaceful and democratic means™ as well as
undertakings ˜to serve all the people of Northern Ireland equally, and . . . to
promote equality and prevent discrimination™, ˜to support, and act in accor-
dance with, all decisions of the Executive Committee and Assembly™ and ˜to
comply with the Ministerial Code of Conduct™ set out in Schedule 4. Failure of
a minister to observe any term of the Pledge of O¬ce may result in exclusion
from o¬ce by resolution of the Assembly passed with cross-community
support (s 30).
If either the First Minister or the Deputy First Minister resigns, both must
relinquish o¬ce and the Assembly is required to elect their successors within six
weeks. Its failure to do so following the resignation of the First Minister,
Mr Trimble, on 1 July 2001 was followed by successive temporary suspensions
of devolved government (see above; see also on this issue Robinson v Secretary
of State for Northern Ireland [2002] UKHL 32, discussed in chapter 2). There
continues to be a Secretary of State for Northern Ireland at Whitehall, with
a seat in the Cabinet, who has the principal responsibility for excepted and
reserved matters relating to Northern Ireland. The Secretary of State has certain
˜override™ powers, for instance to ensure that the Northern Ireland Assembly
and Administration comply with international obligations, or to safeguard the
interests of defence, national security or public order.
The devolution of legislative competence to the Northern Ireland Assembly
does not, it goes without saying (but is said in section 5(6) of the Act), ˜a¬ect
the power of the Parliament of the United Kingdom to make laws for Northern
Ireland™. Parliament may indeed have occasion to make such laws in relation
to excepted or reserved matters (and has done so in the Northern Ireland
(Miscellaneous Provisions) Act 2006, providing for the devolution of police and
justice) but will undoubtedly be at pains to respect fully the terms of the origi-
nal devolutionary settlement or subsequent revisions of it that may be agreed
upon. In respect of some reserved matters the Order in Council procedure may
be used instead of parliamentary enactment. This is permitted by section 85.

(v) Human rights and equality
The Northern Ireland Constitution Act 1973 established a Standing Advisory
Commission on Human Rights to advise the Secretary of State on the ˜adequacy
and e¬ectiveness™ of the law in preventing, and providing redress for, religious
or political discrimination. In practice, with the approval of successive
Secretaries of State, the Commission assumed responsibility to advise on the
whole range of human rights issues in Northern Ireland. It produced valuable
reports and was forthright in its criticism of some government policies and leg-
islation for Northern Ireland, but had only a limited in¬‚uence on the decisions
taken. The parties to the Belfast Agreement a¬rmed their commitment to ˜the
241 Devolution and the structure of the UK


civil rights and the religious liberties of everyone in the community™ and to a
number of speci¬c rights of special concern in the Northern Ireland context,
among them ˜the right to equal opportunity in all social and economic activity,
regardless of class, creed, disability, gender or ethnicity™. These goals were trans-
lated into law by the Human Rights Act 1998, which extends to Northern
Ireland, and by the Northern Ireland Act 1998.
The Northern Ireland Act established a new Northern Ireland Human Rights
Commission, with a membership re¬‚ecting the community balance, which is
to ˜keep under review the adequacy and e¬ectiveness in Northern Ireland of
law and practice relating to the protection of human rights™ (s 69(1)). The
Commission has a responsibility for advising the Assembly whether bills are
compatible with human rights and for advising the Secretary of State and
the Executive Committee of the Assembly on measures which ought to be taken
to protect human rights. It also has the power to assist individuals in proceed-
ings relating to the protection of human rights and may itself bring proceedings
in such cases.
The Commission was also given the task of advising the Secretary of State on
the scope for de¬ning a Bill of Rights for Northern Ireland, supplementing the
˜Convention rights™ included in the Human Rights Act 1998 and re¬‚ecting, as
provided in the Belfast Agreement, ˜the particular circumstances of Northern
Ireland™ and ˜principles of mutual respect for the identity and ethos of both
communities and parity of esteem™. It has published draft proposals for consul-
tation and has engaged in discussions with political parties, human rights
lawyers and other representatives of civil society on the terms of a Bill of Rights.
These have proved contentious, but the Commission is continuing its e¬orts ˜to
build political consensus around a strong and inclusive Bill of Rights™ (Annual
Report of the Northern Ireland Human Rights Commission for 2005, HC 763 of
2005“06, p 19; see further Smith, ˜The drafting process of a Bill of Rights for
Northern Ireland™ [2004] PL 526).
In the Act™s provisions relating to the Human Rights Commission, ˜human
rights™ include but are not restricted to the ˜Convention rights™ (see s 69(11)).
The Act gives e¬ect to a principle of equality of opportunity. Public authorities
operating in Northern Ireland are obliged to ˜have due regard to the need to
promote equality of opportunity™ with respect to religion, political opinion,
race, age, gender, marital status, sexual orientation, disability or dependants
(s 75(1)). On the principle that ˜social cohesion requires equality to be rein-
forced by good community relations™ (Secretary of State Marjorie Mowlam, HC
Deb vol 317, col 109, 27 July 1998), public authorities are also to have regard ˜to
the desirability of promoting good relations between persons of di¬erent reli-
gious belief, political opinion or racial group™ (s 75(2)). The authorities con-
cerned are required to draw up schemes showing how they propose to ful¬l
these duties (see Sch 9).
A single Equality Commission established by the Act amalgamated and
assumed the executive responsibilities of four Northern Ireland bodies: the
242 British Government and the Constitution


Equal Opportunities Commission, the Fair Employment Commission, the
Commission for Racial Equality and the Disability Council. The Commission™s
powers and responsibilities have been extended by regulations prohibiting
discrimination in employment and training on grounds of sexual orientation.
The Commission also monitors the equality obligations of public authorities
under section 75 (above), reviews the schemes submitted by them as to the
ful¬lment of those obligations and investigates complaints of non-compliance
with approved schemes.
It is unlawful for a public authority operating in Northern Ireland to
discriminate against persons on the ground of religious belief or political
opinion (s 76).

(vi) North-South ministerial council and British-Irish council
It was intended that these bodies should make it possible ˜to develop positive
relationships and practical cooperation within the island of Ireland and within
these islands™ (Lord Dubs, Parliamentary Under-Secretary of State, Northern
Ireland O¬ce, HL Deb vol 593, col 1445, 21 October 1998).
The United Kingdom and Irish Governments agreed in 1999 on the estab-
lishment of a North-South Ministerial Council in accordance with Strand Two
of the Belfast Agreement. (See the Agreement on the North/South Ministerial
Council, Cm 4708/2000.) Northern Ireland is represented on the Council by the
First Minister, Deputy First Minister and any relevant ministers (on a cross-
community basis), the Irish Government by the Taoiseach and relevant minis-
ters. The Council is to further cooperation between the two administrations
on matters of mutual interest and seek to reach agreement on common policies.
Its decisions on policies may be implemented either separately in each juris-
diction or by specialised implementation bodies operating on a cross-border or
all-island level (eg on inland waterways, food safety, trade and business devel-
opment and language: Irish and Ulster Scots).
The North-South Council was to be accountable to both the Irish Parliament
and the Northern Ireland Assembly. Decisions requiring legislation or money
must be returned to the Assembly for the laws to be enacted or the money voted.
Following the suspension of the Northern Ireland Assembly in October 2002, it
was agreed between the British and Irish Governments that decisions relating
to the implementation bodies should for the time being be taken by the two
Governments.
The British and Irish Governments also agreed in 1999 on the establishment
of a British-Irish Council, in accordance with Strand Three of the Belfast
Agreement and as a concession to Unionist concerns about an institutionalised
participation of the Republic of Ireland in the a¬airs of the Province. (See Cm
4710/2000.) This Council comprises representatives of the British and Irish
Governments, of the devolved administrations in Northern Ireland, Scotland
and Wales, and of the Crown dependencies of the Channel Islands and Isle of
Man. The Council seeks cooperation on matters of mutual interest (such as
243 Devolution and the structure of the UK


transport links, tourism, agricultural, environmental, cultural, health and
education matters and issues arising in the European Union). It may reach
agreement on common policies and actions and decide on the means of imple-
menting them.
The Intergovernmental Conference set up in 1985 was subsumed in a stand-
ing British-Irish Intergovernmental Conference established by agreement of
the two governments in 1998 (Cm 4709/2000) in accordance with the Belfast
Agreement. This is a forum for cooperation between the two governments on
all matters of common concern. It enables the Irish Government to contribute
to United Kingdom policy-making in relation to non-devolved Northern
Ireland matters, but when these are under discussion, representatives of the
Northern Ireland Administration may also take part.
The Belfast Agreement and the enactment of its terms in the Northern
Ireland Act 1998 were achieved by a mixture of pressure and goodwill, by hard
bargaining, concession and compromise. The outcome was a skilfully contrived
power-sharing scheme which, if it is to be revived (in whatever form), will
demand a sustained political will on all sides for it to bring stability and lasting
peace to Northern Ireland.
(See further C Harvey (ed), Human Rights, Equality and Democratic Renewal
in Northern Ireland (2001); R Wilford (ed), Aspects of the Belfast Agreement
(2001); Had¬eld, ˜The Belfast agreement, sovereignty and the state of the union™
[1998] PL 599; O™Leary, ˜The Belfast agreement and the British-Irish agree-
ment™, in A Reynolds (ed), The Architecture of Democracy (2002); C Campbell

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