Executive functions without functioning Executive
The Northern Ireland (Executive Formation and Exercise of Functions) Bill goes before Parliament at Westminster today.
The proposed legislation would extend the period for creation of the Northern Ireland Executive to 26 March 2019 with power for Karen Bradley MP to further delay that deadline as far as August 2019.
More significantly, the legislation, if passed, will permit senior officers of Northern Ireland departments to exercise functions of those departments if they are satisfied that to do so is in the public interest. This gives rise to the questions:-
- Who are the senior officers being granted these powers?
- How do they determine what is in the public interest?
Senior officers are those people employed within the various government departments who are either members of the Northern Ireland Senior Civil Service or are members of the Northern Ireland Civil Service who are specifically designated by the relevant Department as senior officers.
The Secretary of State will be required to publish guidance around the exercise of functions by those senior officers including guidance as to the principles to be taken into account when considering the public interest. Before publishing her guidance, the Secretary of State must have regard to any representations made by the MLA’s. The current draft legislation indicates MLA involvement is consultative only.
The legislation further provides the Lord Chancellor and Secretary of State with powers of appointment and removal in respect of Members of the Judicial Appointments Commission, the Policing Board, the PSNI above rank of Chief Superintendent, the Probation Board and in respect of the Police Ombudsman. Before exercising such powers, the Lord Chancellor and Secretary of State must consult a relevant Northern Ireland department. Again, this is a consultation requirement only.
It will be interesting to follow this through the parliamentary debate. A number of questions remain unanswered. Even if the legislation progresses to enactment very quickly, when will the Secretary of State provide further guidance? Will key advisers be employed and designated “senior officer” status in order to exercise certain powers? It may take some time before we will know the full extent of powers being conferred; and on whom, specifically.