First and Deputy First Minister
Within seven days after the meeting of the Assembly, the offices of the First Minister and deputy First Minister are filled, in accordance with the following provisions. The largest political party of the largest political designation nominates the First Minister. The largest political party of the second largest political designation nominates the deputy First Minister.
Unless the offices are taken up, each must be re-nominated. The procedure may apply as many times as necessary in order to fill the two offices. No person may take up the office later than seven days after the first meeting of the Assembly. Each must affirm the pledge of office. The offices are held until the next appointment. Either First Minister or deputy First Minister may appoint a person to act in their absence or incapacity or vacancy for up to six weeks.
If either the First or deputy First Minister ceases to hold office, the other is deemed to have ceased to hold office but may continue to hold office, exercise functions, until the offices are filled. If the offices are vacant at any time, they are to be filled within seven days under the below procedure.
The size of a political party is determined by the number of seats it held on the day the Assembly first met following the election. If parties have the same number of seats, the number of first preference votes determines the larger.
A party is deemed to be of the designation if more than half of its members have that designation. The designations are “Nationalist” and “Unionist” or “Other”. The size of each designation is the number of members in it.
If the largest political party of the largest political designation is not the largest political party, the nomination for First Minister is to be made by the nominating officer of the largest political party. The designation for deputy is made by the nominating officer of the largest political party of the largest political designation in this case.
The Minister of Justice is now the only Northern Ireland Executive Minister elected on a cross-community vote. All other ministers are party appointees.
Exclusion
Where the Assembly resolves that a political party does not enjoy its confidence; and the period of exclusion has not come to an end, the above provision is to take effect as if the number of seats it held was nil. The same applies where a Secretary of State gives a direction in respect of a political party.
Where the person nominated to hold office as First or deputy First Minister ceases to hold so as a result of such a direction, both cease to hold office.
If the Assembly resolves that a Minister or junior Minister no longer enjoys the confidence of the Assembly because he is not committed to non-violence and exclusively peaceful and democratic means; or because of a failure to observe his terms of office, he may be excluded for a period between three and 12 months. This may be extended by further three to 12 months.
The Assembly may resolve a political party does not enjoy its confidence for the same reasons. In this case, the party is excluded from holding office as Ministers or junior Ministers between six and 12 months, which may be extended.
The Secretary of State may require the Assembly to consider a resolution to this effect. The Secretary of State shall take account of whether the person concerned is committed to the use now and in the future of only democratic and peaceful means to achieve his objectives; whether it has ceased to be involved in any acts of violence or preparation for violence; whether it is directing or promoting acts of violence; whether it is co-operating with the decommissioning legislation; and any recommendation Assembly may consider pursuant to the Monitoring Commission legislation. A resolution may only be passed with cross-community support.
The Decommissioning Monitoring Commission has the power to take steps involving a recommendation for exclusion. Where the motion for a resolution fails, the Secretary of State may exclude the Minister or junior Minister concerned for such period of not less than three months, between 12 and three months, as he may direct, which may be renewed. The Secretary of State may only exercise the power if he is satisfied in the above terms.
In exceptional circumstances, the Secretary of State may exclude a Minister or junior Ministers until a report from the Commission has been made and the Assembly has considered a resolution, for up to two weeks. Exceptional circumstances are such that there is insufficient time for the Commission to make a report and the Assembly to adopt a resolution.
Appointing Ministers
The First and Deputy First Minister acting jointly shall determine the number of Ministerial offices to be held and the functions exercisable by the holder of each office. This applies, where legislation provides for the establishment of a new Northern Ireland Department or dissolves a different one, an existing one. The number of Ministerial offices is not to exceed 10 or such greater number as the Secretary of State may prescribe.
The Minister of Justice is now the only Northern Ireland Executive Minister elected on a cross-community vote. All other ministers are party appointees.
Where a new and existing office is dissolved, Ministerial offices become vacant by exclusion or other circumstances, as may be prescribed, all Ministers are to cease to hold office and there is provision for filling of offices.
The following formula is applied as many times as is necessary to secure each Ministerial office is filled;
The number of seats is divided by one plus number of Ministerial offices held. Where the resultant number for two political parties are equal, the number of seats is substituted for the number of first preference votes at the last general election.
A Minister may not take up office until he has affirmed the terms of the pledge of office. Minister may resign by notice, he ceases to be a member of the Assembly otherwise than by dissolution; or he is dismissed. Where a Ministerial office becomes vacant, the party who nominated the previous incumbent may nominate the substitute.
The Minister and First deputy Minister may jointly appoint junior Ministers. The functions to be exercised by them are specified in the determination. The First and deputy First Minister may agree on other rules and formulae in relation to the determination. A determination must be approved by the Assembly.
A Minister or a junior Minister at his qualifying office is a Minister of the Government of Ireland, Chairman or Deputy Chairman of a committee of the Dail or Seanad or a joint committee of the Oireachtas.
The Executive and Departments
The Executive Committee of the Assembly consists of the First Minister, deputy First Minister and other Ministers. The deputy and First Minister and First Minister are Chairman. The function shall include dealing and co-coordinating the work of the Executive Committee. The Executive Committee is to provide a forum
- for discussion and agreement on issues that cut across the responsibility of two or more Ministers
- for prioritising executive and legislative proposals and recommending a position where necessary such as in dealing with external relations.
They shall seek to agree each year, a programme incorporating an agreed budget, linked policies and a programme, subject to approval by the Assembly after Scrutiny and Assembly Committees on a cross-community basis.
The existing Northern Ireland Departments became departments for the purpose of the Assembly and, devolved government. A Department may be vested in the First and deputy First Minister acting jointly and shall not be otherwise regarded as a department for the above purposes.
There are special provisions in respect of the Northern Ireland Department dealing with policing and justice. It may be in charge of two Northern Ireland Ministers acting jointly. The Minister must be appointed by a resolution passed by a majority of the designated Nationalist and the designated Unionists. It may provide for rotating senior and junior Ministers. It may provide for a Minister and deputy Minister. This has been reformed; see below.
If the Secretary of State has no reasonable prospect that the Assembly will pass above Act, it may provide for an Act of Parliament, an Order in Council before Parliament, establishing a new Northern Ireland Department consisting of policing and justice. There are other elaborate provisions in relation to the Department of Justice, features of which are set out, separately. The Department of Justice was eventually established in 2011.
Secondary Legislation
Acts of the Assembly or other enactments may confer functions on Ministers or by Departmental names. The executive power in Northern Ireland is vested in Her Majesty. In relation to transferred prerogative and other executive matters. They are exercisable on Her Majesty’s behalf by any Minister or Northern Ireland Department.
The Northern Ireland Civil Service and the Commissioner for Public Appointments for Northern Ireland, the prerogative, and other executive powers are exercisable on Her Majesty’s behalf by the First Minister and deputy First Minister acting jointly.
The First Minister and deputy First Minister acting jointly may by prerogative order direct that such of the powers mentioned above be exercised by Ministers or specified departments.
Limits of Power and Directions
A Minister may not approve any secondary legislation which is incompatible with the European Convention on Human Rights, EU Community law, discriminates on the ground of religious belief or political opinion, aids or incites another person to discriminate or modifies any protected enactment under the legislation.
The Secretary of State may revoke legislation dealing with an excepted or reserved matter other than as permitted. Same applies to actions taken or proposed to be taken by a Government Department which is incompatible with an international obligation, defences, interests of defence or national security, protection of public safety or public order. He may direct that the action not be taken.
Conversely, where he is of the opinion that any action is so required by international obligations, safeguarding the interest of defence and national security, protecting public safety or public order, he may direct the action be taken. Action may include making of subordinate legislation or introducing a Bill into the Assembly.
The Secretary of State may revoke legislation which would be incompatible with any international obligations, incompatible with the interests of defence or national security or protection of public safety or order or would have an adverse effect on the operation of the single market in goods and services.
A Minister of the UK government may make an order requiring a proportionate part of the result to be achieved by the UK under an international obligation to be achieved by a Northern Ireland Department. This may be an amount or ratio or be with reference to an area.
Agency arrangements may be made between departments of the UK Government and Northern Ireland Departments for any functions to be discharged by members or officers of the other.
Ministerial Code
A Ministerial Code is prepared under the Northern Ireland (St Andrews Agreement) Act and may be replaced from time to time and amended. Ministers or junior Minister must comply with the Ministerial Code. The Assembly, on the proposal of the Minister and deputy First Minister, may draft amendments to the Code.
The Ministerial Code must include provisions in relation to the procedures of the Executive in relation to taking decisions and consideration of the decision and powers that are to be considered by the North-South Ministerial Council, and the British-Irish Council.
The Code must provide that it is the duty of the chairmen of the Committee to seek to ensure that decisions of the Executive are reached by consensus wherever possible. If consensus cannot be reached, a vote may be taken. Three members of the Executive Committee may require a vote on a particular matter which is to be voted on by the Executive Committee to require cross-community support. A vote on a matter in the Executive Committee shall require cross-community support in the Executive Committee.
If 30 members petition the Assembly concerning a decision taken by the Minister or junior Minister that may be in contravention of the Code or relates to a matter of public importance, the matter may be referred to the decision of the Executive for consideration. The Executive Committee considers the reference and determines whether it there has been a breach of the Code; whether or not it relates to a significant or controversial matter; and any action the Executive proposes to take, in relation to the decision.
Statutory Committees
Standing orders of the Assembly must be made to enable statutory committees to be established. Committees are to advise and assist the deputy and First Deputy Minister in formulation of policy in relation to matters within their responsibility as Ministers jointly in charge of the office of First and deputy First Minister and to advise and assist each Northern Ireland Minister in the formulation of policy with respect to the matters which is his responsibility.
Committees may be established in relation to one or more Northern Ireland Departments. They are to have the functions of scrutiny, policy development and consultative role with respect to the Department to which it is associated. It has a role in the initiation of legislation.
They have the power to consider and advise the Department on budgets and annual plans, approve secondary legislation, and take the committed stage of relevant primary legislation. They may call for persons and papers, initiate inquiries and make reports and consider and advice on matters brought to the Committee by its Minister.
The methods of nomination of members to committees are broadly similar to that in respect of the appointment of Ministers. The chairmanships are nominated in a similar way to the appointment of Ministers.
Provision is to be made for a Committee to review the functioning of the Assembly and Executive. It is to make reports for the Assembly and Executive. It is to make a report on the operation of Parts III and IV of the legislation to the Secretary of State, Assembly and Executive.
Further Disqualification Provisions
The Northern Ireland (Miscellaneous Provisions) Act 2014 disqualifies members of the House of Commons and the Dàil Èireann from being members of the Assembly. A person elected to the Assembly must in effect resign the position in the other legislature within eight days.
Prospective members of Assembly are obliged to make a statement of readiness that they are not disqualified for membership of the Assembly. He must state if he is an MP or member of Dàil Èireann.
The legislation extends the term of the Assembly from four to five years.
The election of the Minister for Justice had stood separate from the D’Hondt Appointment System so that the Minister for Justice’s party might also hold a second ministry under that provision. The Minister for Justice counts as a ministry in the successive rounds of appointment so that it is treated equally with other ministries in those terms but not in the substantive terms of appointment.
The Northern Ireland Assembly Disqualification Act applies to disqualified certain persons from membership of the Assembly, include being persons holding judicial office, civil service of the Crown, members of the Regular Armed Force, members of the Police Force maintained by any police authority, members of third-party legislatures other than the Republic of Ireland (see above), holders of certain specified public offices.
A person who is an officer on the retired or emergency list of the Regular Armed Forces or who holds an emergency commission is not disqualified. Similarly, a naval, army, marine or air force pensioner or former soldier, who is recalled for service, is not disqualified.
Disqualifications apply to most judicial offices in the United Kingdom, Social Security Services, Child Support Commissioner, Immigration Services Tribunal, Land Registry Adjudicator.
There are several Boards all of whose members are disqualified. There are almost 200 Boards in the United Kingdom, membership of which is incompatible with Membership of the Assembly. They range from most public statutory bodies, commissions, boards, regulated sectors or undertaking functions generally.
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