Policy background Exercise of departmental functions during the period for Executive formation
The Court held in Buick2 that powers exercisable by departments in the absence of Ministers are subject to limitations. In particular – and for the purposes of that appeal – that departments may not exercise functions in respect of matters that would normally be required to be referred to the Executive Committee of the Assembly because they are cross-cutting, significant or controversial. It also observed that decisions which, although conferred on departments, would normally be referred to Ministers for approval lie beyond the competence of civil servants. This ruling is significantly restricting the ability of senior officers of Northern Ireland departments to take decisions that are necessary to ensure the continued delivery of public services. The Act will clarify that a senior officer of a Northern Ireland department is not prevented from exercising functions of the department during the period for forming an Executive (i.e. the period established under section 1) where it is in the public interest to do so. "Senior officer" is given the same meaning as in the Departments (Northern Ireland) Order 1999, namely: a person who is employed in that department and is (a) a member of the Northern Ireland senior civil service; or (b) a member of the Northern Ireland civil service designated by the department as a senior officer for the purposes of that Order.
	The Act requires the Secretary of State to publish guidance about the exercise of departments’ functions, and departments are to have regard to that guidance. It is intended that the guidance will provide a framework to support Accounting Officers and Senior Officers when considering whether a decision should or should not be taken to exercise a departmental function in the absence of Ministers, and will provide a set of principles and factors to be taken into account when making this decision. This guidance will not identify or direct specific decisions but will set out principles to be taken into account when deciding whether or not it is in the public interest to exercise a function in the absence of Ministers.
	The Act also makes provision in respect of the exercise of functions since 2 March 2017, when Ministers  ceased  to  be  in  place, to  provide  clarity around functions that have already been exercised.