Commentary on provisions of Act Section 3: Exercise of departmental functions during period for Executive formation
Section 3 makes provision for the exercise of Northern Ireland departmental powers during the period for forming an Executive. In particular, it clarifies that the absence of Ministers does not prevent a senior officer of a Northern Ireland department from exercising a function of the department if she or he is satisfied that it is in the public interest to do so during the period for forming an Executive (section 3(1)).
	The Secretary of State is required to publish guidance about the exercise of departmental functions, including guidance as to the principles to be taken into account in deciding whether or not to exercise a function, and senior officers of departments are required to have regard to that guidance (subsections (2) and (3)). Before publishing this guidance, including any subsequent revisions, the Secretary of State is required to have regard to any representations made to her by Members of the Northern Ireland Assembly (subsection (9)).
	Subsections (4), (5) and (7) clarify that the absence of Ministers or the Executive Committee of the Assembly is not to be treated as having prevented departments from exercising their functions in the period since 2 March 2017. Subsection (6) preserves the rights of existing litigants to proceed with their pending claims. Such claims will not be affected by the retrospective provision. But departments will not be prevented from retaking such decisions.