Public Affairs

Executive Formation and Exercise of Functions Act

agendaNi outlines the recently introduced Executive Formation and Exercise of Functions Act, described by Secretary of State, Karen Bradley MP, as providing opportunity and the necessary time and space to restart political talks with the aim of restoring devolved government as soon as possible.

Speaking about the legislation in October 2018, the Secretary of State said that a devolved power-sharing Executive was at the core of the Belfast Agreement and that the Act offered the best opportunity of achieving that.

Bradley outlined that it was “imperative” that Northern Ireland departments have clarity, so that decisions can be taken in the public interest to maintain delivery of Northern Ireland’s public services in the absence of ministers. Adding: “The guidance we have published today alongside the Bill will support civil servants in carrying out their duties.”

The legislation’s main functions are:

• to create a period where an Executive can be formed at any time, during which there will be no duty to call an election;
• it provides “certainty” for Northern Ireland departments to ensure the continued delivery of public services;
• it includes a requirement for the Secretary of State to issue guidance for local departments to support the decision-making process in the absence of ministers and;
• it also addresses the need for public appointments to certain bodies and offices that cannot be made in the absence of ministers.

Within the legislation, the Government reiterates its commitment to the Belfast Agreement while recognising that, without an Executive, there are budgetary decisions it should take. In addition, “while efforts to restore the Executive continue, Northern Ireland departments will need to take decisions and exercise functions in order to uphold good governance and protect the public interest”.

To that end, the guidance is aimed at supporting those departments when faced with a decision and implementing a function.

The Act allows for a five month period during which an Executive may be formed at any point without further main legislation or an election. It also removes the duty to propose a date for an election during that time and provides a chance to restart political talks and restore the Executive.

Provision is also made to provide “clarity that the absence of Northern Ireland ministers does not prevent a senior officer of a department from exercising a function of the department if the officer is satisfied that it is in the public interest to exercise the function…”

In offering “guiding principles for decision-making”, the Act states: “Some decisions should not be taken in the absence of ministers. Departments should therefore first consider the public interest of having locally elected, accountable ministers taking decisions. Any major policy decisions, such as the initiation of a new policy, programme or scheme, including new major public expenditure commitments, or a major change of an existing policy, programme or scheme, should normally be left for ministers to decide or agree.”

“Some decisions should not be taken in the absence of ministers. Departments should therefore first consider the public interest of having locally elected, accountable ministers taking decisions.”

It is notable that there is an obvious difference between “some decisions” should not be taken in the absence of ministers and “policy decisions” … should normally be left for ministers to decide or agree.

The legislation offers a number of principles of which civil servants should be mindful when “considering whether there is a public interest in taking a decision in the absence of ministers”: the need to sustain public services; the need to follow “the priorities and commitments” of the former Executive and its ministers unless there is an “exceptional circumstance”; and the need to follow the 12 outcomes in the 2018-19 Outcomes Delivery Plan. These include the need to support a strong economy, to protect the environment, to create an innovative society and a shared space that respects diversity, respecting the law, offering people opportunities and giving children and young people “the best start”.

In addition, “Opportunities should also be taken to continue to deliver previously agreed investment programmes such as those in the Investment Strategy for Northern Ireland 2011-2021”.

Civil servants are reminded that they should consider whether putting a decision on the long finger might result in serious financial loss to the public purse, cause harm to public health and safety or result in the loss of opportunity for the local economy to “realise a significant public advantage” in terms of finances, investment, job creation or in tackling disadvantage.

Any decision which might have an impact on another department should be discussed with that department and “due regard” given to its view while “where decisions are not taken, departments may, however, continue to advance preparatory work as far as possible until such time as decisions can be taken by ministers”.

However, all decisions must comply with current legislation and statutory guidelines and “where practicable” relevant individuals and groups affected should be consulted. A full report on the progress of work should be published and departments “should consider how best to maintain records on decisions that have been taken” with a view to making them available should an Executive be formed.

The Bill also allows the Government to make public appointments which would usually have been made by local ministers. These include the Northern Ireland Judicial Appointments Commission, Northern Ireland Policing Board and approval of the board’s appointments of senior police officers, the Probation Board for Northern Ireland and the Police Ombudsman for Northern Ireland.

While many people will understand the necessity for taking decisions in the absence of an Assembly, many might also point to the conflicting scenario where civil servants are given guidance to undertake a course of action and then reminded of the many constraints as to why they should not.

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