Commentary on Sections Sections 10-12 – Excepted and Reserved Matters: Arms-Length Bodies
63.These sections make provision amending Schedules 2 (excepted matters) and 3 (reserved matters) to the 1998 Act.
64.The amendments made by these sections have the effect of converting the functions relating to certain arms-length bodies from excepted matters into reserved matters. This change enables the Assembly to legislate on those matters, but only with the consent of the Secretary of State. This change also enables the Secretary of State to devolve these matters by making an Order in Council under section 4 of the 1998 Act, following a resolution of the Northern Ireland Assembly with cross-community support.
65.Currently, the appointment of the Civil Service Commissioners for Northern Ireland is an excepted matter and this function is exercised by the Secretary of State on behalf of Her Majesty. Similarly, the provisions in Part VII of the 1998 Act relating to the Northern Ireland Human Rights Commission are excepted matters and functions under those provisions are exercised by the Secretary of State.
66.Sections 10 and 11 move the appointment of the Civil Service Commissioners for Northern Ireland and certain provisions relating to the Northern Ireland Human Rights Commission from the ‘excepted’ category in Schedule 2 to the ‘reserved’ category in Schedule 3 of the 1998 Act. These changes put those bodies in the same category as the Equality Commission for Northern Ireland, which is already a reserved matter.
67.Section 10 also requires the Secretary of State to lay a report in Parliament prior to bringing forward an Order in Council that makes the Civil Service Commissioners for Northern Ireland a transferred matter. The Secretary of State would be required to lay such a report at least three months prior to laying that Order. The report must set out the Secretary of State’s view of the effect that the Order would have on the Commissioners’ independence, the application of the merit principle in respect of appointments to the Northern Ireland Civil Service, and the impartiality of the Northern Ireland Civil Service.
68.Section 11 also requires the Secretary of State to lay a report in Parliament prior to bringing forward an Order in Council that makes the Northern Ireland Human Rights Commission a transferred matter. The Secretary of State would be required to lay such a report at least three months prior to laying that Order. The report must set out the Secretary of State’s view of the effect that the Order would have on the Commission’s independence, the application of internationally accepted principles relating to national human rights institutions and the Commission’s relationship with the Assembly.
69.Local government boundaries in Northern Ireland are a transferred matter. However, local government elections in Northern Ireland are an excepted matter under paragraph 12 of Schedule 2 to the 1998 Act, and “elections” in this context is taken to include the determination of electoral boundaries. Accordingly, while the boundaries of the district within which each council operates are set by the Assembly following recommendations by the Local Government Boundaries Commissioner, the electoral areas for each of those districts are set by order of the Secretary of State acting under section 84 of the 1998 Act, following recommendations by the District Electoral Areas Commissioner. In recent practice, the Secretary of State has appointed the former Local Government Boundaries Commissioner to be the District Electoral Areas Commissioner (this was the case in 1984, 1992, 2009 and 2013).
70.Section 12 moves the division of local government areas into electoral areas, the determination of names of district electoral areas and the determination of the number of councillors to be elected in each district, from the excepted to the reserved category. This change enables the Assembly to legislate on them, but only with the consent of the Secretary of State. This change also enables the Secretary of State to devolve these matters by making an Order in Council under section 4 of the 1998 Act, following a resolution of the Northern Ireland Assembly with cross-community support. For example, such an order could permit the Northern Ireland Executive to create a local government boundaries commission responsible for both local government and electoral area boundaries, as exists in Scotland, Wales and England. Any such order would ensure that the Secretary of State would retain the power to set electoral areas in the event that the Assembly did not reach agreement on a suitable model.