Northern Ireland (Executive Formation etc) Act 2022

Executive formation

Extension of period for making Ministerial appointments by six weeks

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• (1) The Northern Ireland Act 1998 has effect as if, during the current post-election period, for subsections (3A) to (3C) of section 16A (appointment of Ministers following an Assembly election) there were substituted—

(3A) In this section “the period for filling Ministerial offices” means the period beginning with 13 May 2022 and ending with 8 February 2024.

• (2) In this section, “the current post-election period” means the period beginning with 5 May 2022 and ending with the day on which a poll for the election of an Assembly is next held.

Power to extend period for making Ministerial appointments by a further six weeks

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Exercise of departmental functions

Exercise of departmental functions

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• (1) The absence of Northern Ireland Ministers does not prevent a senior officer of a Northern Ireland department from exercising a function of the department during the current period in which there is no Executive if the officer is satisfied that it is in the public interest to exercise the function during that period.

• (2) In this section “the current period in which there is no Executive” means the period—

• (a) beginning with 6 December 2022 (the day on which this Act was passed), and

• (b) ending when an Executive is next formed.

• (3) The fact that a matter connected with the exercise of a function by a Northern Ireland department has not been discussed and agreed by the Executive Committee of the Northern Ireland Assembly is not to be treated as preventing the exercise of that function as mentioned in subsection (1).

• (4) The Secretary of State must publish guidance about the exercise of functions by a senior officer of a Northern Ireland department in reliance on this section, including guidance as to the principles to be taken into account in deciding whether or not to exercise a function.

• (5) Senior officers of Northern Ireland departments must have regard to that guidance.

• (6) Before publishing guidance under subsection (4) the Secretary of State must have regard to any representations made by members of the Northern Ireland Assembly.

Exercise of departmental functions before this Act is passed

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• (1) The absence of Northern Ireland Ministers is not to be treated as having prevented any senior officer of a Northern Ireland department from exercising functions of the department during the period beginning with 28 October 2022 and ending when this Act is passed.

• (2) Subsection (1) does not apply in relation to the exercise of a function if—

• (a) proceedings begun, but not finally decided, before this Act is passed involve a challenge to the validity of that exercise of the function, and

• (b) the application of that subsection would affect the outcome of the proceedings,

but nothing in this subsection prevents the re-exercise of the function in the same way in reliance on section 3(1).

Exercise of departmental functions: supplementary

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• (1) Sections 3 and 4 have effect despite anything in the Northern Ireland Act 1998, the Departments (Northern Ireland) Order 1999 (S.I. 1999/283 (N.I. 1)) or any other enactment or rule of law that would prevent a senior officer of a Northern Ireland department from exercising departmental functions in the absence of Northern Ireland Ministers.

• (2) No inference is to be drawn from sections 3 and 4 or this section as to whether or not a senior officer of a Northern Ireland department would otherwise have been prevented from exercising departmental functions.

Exercise of appointment functions

NI ministerial appointment functions

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• (1) During the current period in which there is no Executive, an appointment function of a Northern Ireland Minister in relation to a specified office may be exercised by the relevant Minister of the Crown.

• (2) The table defines terms for the purposes of this section.

“specified office”	“relevant Minister of the Crown”
King’s Counsel	Lord Chancellor
Member of the Northern Ireland Judicial Appointments Commission	Lord Chancellor
Commissioner for Children and Young People for Northern Ireland	Secretary of State
Member or chair of the Agricultural Wages Board for Northern Ireland	Secretary of State
Member, chair or deputy chair of the Council for Nature Conservation and the Countryside	Secretary of State
Member of the Drainage Council for Northern Ireland	Secretary of State
Member, chair or deputy chair of the General Consumer Council for Northern Ireland	Secretary of State
Member, chair or deputy chair of the Health and Safety Executive for Northern Ireland	Secretary of State
Member or chair of the Historic Buildings Council	Secretary of State
Member or chair of the Labour Relations Agency	Secretary of State
Member or chair of the Livestock and Meat Commission for Northern Ireland	Secretary of State
Trustee or chair of the Board of Trustees of the National Museums and Galleries of Northern Ireland	Secretary of State
Member, chair or chief executive of the Northern Ireland Council for the Curriculum, Examinations and Assessment	Secretary of State
Member or chair of the Northern Ireland Fishery Harbour Authority	Secretary of State
Member, chair or vice-chair of the Northern Ireland Housing Executive	Secretary of State
Member or chair of the Northern Ireland Local Government Officers’ Superannuation Committee	Secretary of State
Member of the Northern Ireland Policing Board	Secretary of State
Member, chair or deputy chair of the Northern Ireland Tourist Board	Secretary of State
Commissioner for Older People for Northern Ireland	Secretary of State
Member of the Police Service of Northern Ireland above the rank of chief superintendent	Secretary of State
Member, chair or deputy chair of the Probation Board for Northern Ireland	Secretary of State
Commissioner for Public Appointments for Northern Ireland	Secretary of State
Member, chair or vice-chair of the Sports Council for Northern Ireland	Secretary of State

• (3) The Secretary of State may by regulations made by statutory instrument add entries to the table.

• (4) A statutory instrument containing regulations under subsection (3) may not be made unless—

• (a) a draft of the instrument has been laid before and approved by a resolution of each House of Parliament, or

• (b) the regulations state that the Secretary of State considers it to be expedient for the regulations to be made more quickly than the procedure in paragraph (a) would allow.

• (5) Where regulations contain a statement under subsection (4)(b)—

• (a) the instrument containing the regulations must be laid before Parliament after being made, and

• (b) the regulations cease to have effect at the end of the period of 28 days beginning with the day on which the instrument is made unless, during that period, it is approved by a resolution of each House of Parliament.

• (6) If regulations cease to have effect as a result of subsection (5)(b), that does not—

• (a) affect the validity of anything previously done under the regulations, or

• (b) prevent the making of new regulations.

• (7) In calculating the period of 28 days mentioned in subsection (5)(b), no account is to be taken of any whole days that fall within a period during which—

• (a) Parliament is dissolved or prorogued, or

• (b) both Houses of Parliament are adjourned for more than four days.

• (8) Before exercising an appointment function in reliance on subsection (1) the relevant Minister of the Crown must consult a Northern Ireland department.

• (9) Any enactment or document is to have effect, so far as may be necessary for or in consequence of the exercise of any functions by the relevant Minister of the Crown in reliance on this section, as if references to a Northern Ireland Minister included, or were, references to the relevant Minister of the Crown.

Minister of the Crown appointment functions

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Any requirement for a Minister of the Crown to consult, or obtain the approval of, a Northern Ireland Minister or the Executive Committee of the Northern Ireland Assembly before exercising an appointment function has effect, during the current period in which there is no Executive, as a requirement to consult a Northern Ireland department.

Joint UK appointment functions etc

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• (1) During the current period in which there is no Executive, the Secretary of State may exercise any appointment function of a Northern Ireland Minister that is exercisable jointly with one or more other persons who include the Secretary of State.

• (2) Before exercising an appointment function in reliance on subsection (1) the Secretary of State must consult a Northern Ireland department.

• (3) Any enactment or document is to have effect, so far as may be necessary for or in consequence of the exercise of any functions by the Secretary of State in reliance on this section, as if references to a Northern Ireland Minister included, or were, references to the Secretary of State.

Sections 6 to 8: core definitions

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• (1) In sections 6 to 8—

• “appointment function” means—the function of appointing a person to an office or recommending a person for appointment;the function of requesting nominations for an appointment;the function of determining terms of appointment;the function of determining remuneration, pensions or other payments in respect of appointments, loss of office or suspension from office;the function of suspending or removing a person from office, receiving notice of a person’s resignation from office or calling on a person to resign or retire;the function of approving or being consulted about the exercise of any of the functions listed in paragraphs (a) to (e);the function of requiring or requesting another person to exercise any of the functions listed in paragraphs (a) to (e);a function ancillary to any of the functions listed above;

• “current period in which there is no Executive” means the period beginning when this section and sections 6 to 8 come into force and ending when an Executive is next formed.

• (2) A reference in those sections to the function of a person includes a function that is exercisable by that person jointly with one or more other persons.

• (3) The Secretary of State may by regulations made by statutory instrument amend the definition of “appointment function”.

• (4) A statutory instrument containing regulations under subsection (3) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

Northern Ireland Assembly pay

Power to determine salaries and other benefits for Members of the Assembly

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• (1) During a period in which the Northern Ireland Assembly is not functioning, the Secretary of State may make a determination as to—

• (a) the salaries or allowances payable under section 47 of the Northern Ireland Act 1998 in respect of some or all of that period, and

• (b) allowances or gratuities payable under section 48 of that Act to or in respect of a person ceasing to be a member, or ceasing to hold office, during that period.

• (2) A determination under subsection (1) must be in writing.

• (3) As soon as possible after a determination under subsection (1) is made—

• (a) the Secretary of State must send it to the Northern Ireland Assembly Commission, and

• (b) the Commission must publish it.

• (4) Section 12 of the Assembly Members (Independent Financial Review and Standards) Act (Northern Ireland) 2011 applies to a determination under subsection (1)(a) of this section as it applies to a determination under section 2(1)(a) of that Act.

• (5) For the purposes of any determination made by, or by virtue of provision made by, the Assembly under section 48 of the Northern Ireland Act 1998 so far as relating to pensions, members are to be treated as having whatever salary they would have had were it not for any determination made under subsection (1)(a) of this section.

• (6) A determination under subsection (1) may amend a determination made by, or by virtue of provision made by, the Northern Ireland Assembly under section 47 or 48 of the Northern Ireland Act 1998.

• (7) A determination made by, or by virtue of provision made by, the Northern Ireland Assembly under section 47 or 48 of the Northern Ireland Act 1998 may not change the effect of a determination made under subsection (1).

• (8) In this section “period in which the Northern Ireland Assembly is not functioning” means—

• (a) the period beginning when this Act is passed and ending with the next day on which the Presiding Officer and deputies are in post, or

• (b) any later period—

• (i) beginning with the first day after the end of the period in which an Assembly must meet if, at the end of that period, the Presiding Officer and deputies are not in post, and

• (ii) ending with the next day on which the Presiding Officer and deputies are in post.

• (9) In subsection (8)—

• (a) a reference to a Presiding Officer or deputy being in post is a reference to their being in post having been elected under section 39(1) of the Northern Ireland Act 1998 after—

• (i) in the case of the reference in paragraph (a), this Act is passed, or

• (ii) in the case of a reference in paragraph (b), the day of the poll at which the Assembly referred to in paragraph (b)(i) is elected;