| Act of Parliament | |
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| Long title | An Act to extend the period for forming an Executive under section 1(1) of the Northern Ireland (Executive Formation and Exercise of Functions) Act 2018 and to impose a duty on the Secretary of State to report on progress towards the formation of an Executive in Northern Ireland and other matters; to impose duties to make regulations changing the law of Northern Ireland on certain matters, subject to the formation of an Executive; and for connected purposes. |
|---|---|
| Citation | 2019 c.22 |
| Introduced by | Karen Bradley (Commons) Lord Duncan of Springbank (Lords) |
| Territorial extent | United Kingdom |
| Dates | |
| Royal assent | 24 July 2019 |
| Commencement | Between 22 October 2019 and 31 March 2020 |
| Other legislation | |
| Amends |
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| Relates to | |
Status: Current legislation | |
| History of passage through Parliament | |
| Text of statute as originally enacted | |
| Revised text of statute as amended | |
TheNorthern Ireland (Executive Formation etc) Act 2019 (c. 22), colloquially known as the2019 Northern Ireland Act, is anAct of theParliament of the United Kingdom that provided for the extension of the period for forming aNorthern Ireland executive until 13 January 2020. The Act also extended the powers of theSecretary of State for Northern Ireland during this time whilst imposing several conditions. The Act requires that the Secretary of State report regularly to Parliament, designed to limit the ability of the sovereign toprorogue parliament, as well as providing for the legalisation ofsame-sex marriage and opposite-sexcivil partnership inNorthern Ireland (in line with therest of the UK) and the liberalisation of abortion laws (in line withabortion rights in England and Wales) if no executive was formed by midnight on 21 October 2019.[1][2] After the deadline passed, abortion wasdecriminalised automatically by repeal of Sections 58 and 59 of theOffences Against the Person Act 1861; in December 2019 theBritish Government passed regulations legalising same-sex marriage and opposite-sex civil partnerships on 13 January 2020.[3] Further regulations governing abortion came into force on 31 March 2020.[4]
The Renewable Heat Incentive (RHI) scandal related to the cost of arenewable energy scheme initiated byArlene Foster during her tenure as Minister forEnterprise, Trade and Investment.[5] The scandal came to light in November 2016, when Foster wasFirst Minister of Northern Ireland. Foster refused to stand aside during the enquiry, ultimately leading to the resignation ofMartin McGuinness,deputy First Minister, which, under the Northern Ireland power-sharing agreement, led to the collapse of theNorthern Ireland executive in January 2017.[6]
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Following the collapse of the Northern Ireland executive, snap elections were held. These elections were the first in thehistory of Northern Ireland whereunionist parties did not win a majority: this was attributed to the RHI scandal, the role of theDUP inBrexit, and demographic shifts.[7] Under theNorthern Ireland Act 1998 a further election must be held within six weeks if no executive is formed. Following the elections, talks were held and facilitated by the British and Irish Governments in order to restore the devolved administration in Northern Ireland. During this time there were twoSecretaries of State for Northern Ireland:James Brokenshire andKaren Bradley, who all failed to restore the executive. In order to prevent further re-elections the British Parliament passed theNorthern Ireland (Ministerial Appointments and Regional Rates) Act 2017 andNorthern Ireland (Executive Formation and Exercise of Functions) Act 2018 which provided for further extensions to the deadline set in the 1998 Act, as well legislating fordevolved issues such as taxation. Following the 2018 Act, the 2019 bill was introduced to parliament to extend the deadline further.[2][8] Secretary of StateJulian Smith eventually restored the Executive in January 2020 under the terms of theNew Decade, New Approach agreement.
Following the resignation ofTheresa May asLeader of the Conservative Party, pro-Remain and moderate pro-Leave MPs were concerned that the frontrunner to replace her,Boris Johnson may considerproroguing parliament in order to force ano-deal Brexit. As this legislation was in the House during this time,Dominic Grieve and others saw it as having potential to act as a vehicle through which they could limit theright of the executive,Queen Elizabeth II, to order prorogation.[2][9] The effect ofBrexit on the Irish border and the slow progress of talks to restore the Northern Ireland executive both served as reasons for amending the bill to provide for reports to parliament.[9]
In Northern Ireland,LGBT rights lagged behind therest of the United Kingdom, due to thepetition of concern motion available to thesocially-conservative andevangelical Democratic Unionist Party. As a result,same-sex marriages were not performed or recognised by the government in Northern Ireland and there remained gaps in legal protection for transgender individuals. However, with no Northern Ireland executive available to legislate on the issue,direct rule was used as an instrument in order to equalise protection and recognition for LGBT individual across the union.Amnesty International and other organisations, including theLabour Party considered this to be an important issue to legislate on in Westminster; others, such as theConservative Party believed it to be an issue for the people andassembly of Northern Ireland.[2]
Abortion was only legal in Northern Ireland if "there is a risk of real and serious adverse effect on her physical or mental health, which is either long term or permanent", a status achieved through a series of British court cases during the period of direct rule from Westminster, where previously all cases of abortion were illegal.[10] This differed from the rest of the UK as theAbortion Act 1967 did not apply to Northern Ireland, thus theOffences Against the Person Act 1861 retained its provisions againstinfanticide including nearly all cases of abortion.[2][11] The Northern Ireland Assembly was unable to legislate on the issue effectively, again due to the petition of concern available to the Democratic Unionist Party.[12]
The Act makes several provisions within it:[1]
The bill was introduced to allow for ade facto extension period until 13 January 2020. This allowed for negotiations involvingSinn Féin and theDUP, alongside theBritish andIrish Governments. Without the agreement of both the largest parties of each of Northern Ireland's communities, no executive could be formed.[2]
The reports to parliament provided for by the Act were introduced as part of an amendment by Dominic Grieve. The aim of the amendment was to make it functionally impossible to prorogue parliament, but as aroyal prerogative power, it is constitutionally difficult to do sode jure. By requiring reports to be made to parliament, and requiring time to debate them within five calendar days, it prevented the monarch from proroguing parliament as parliament needs to be sitting to debate. However, the principle ofparliamentary sovereignty in this regard had yet to be tested in British or Commonwealth courts, and it was unclear as to whether this could be fulfilled by written report, so not requiring parliament to be sitting in order for MPs to receive the reports. Critics claimed that these amendments were only tenuously linked to the purpose of the bill and therefore not appropriate, as their true function was not linked to the governing of Northern Ireland, but instead was designed to prevent a futureJohnson ministry from proroguing parliament to force through a new negotiated deal or ano-deal Brexit.[2][9] On 28 August 2019,Boris Johnson advised the Queen to prorogue parliament between 12 September and 14 October 2019, thereby spurring a number of court cases, with many of the objections centred around this provision within the Act.[13] However, as 14 October was within 5 calendar days of 9 October, when the report was due, it was unclear if this provision could halt the prorogation, even if it were legally sufficient to do so. In theR (Miller) v The Prime Minister andCherry v Advocate General for Scotland cases, theSupreme Court ruled the prorogation illegal, but not based on these provisions of the Act.
Further amendments provided forsame-sex marriage and liberalisation of abortion laws. This brought Northern Ireland into line with the rest of the UK on bothsocial issues, overruling the stronglyunionist DUP's historic opposition to LGBT and women's rights, due to their strong links to theFree Presbyterian Church of Ulster. This came into force since no executive was formed by 21 October 2019 and could be overruled by a futureNorthern Ireland Assembly.[8][14] The DUP described these additions as "undermining"devolution, whilst theIrish republican Sinn Féin welcomed the move.[8][14]
As no executive was formed before 21 October 2019, these provisions required that the Secretary of State introduce legislation to extend the provisions of theMarriage (Same Sex Couples) Act 2013 to Northern Ireland before 13 January 2020, and to implement the recommendations of theCEDAW'sreport on the UK before 31 March 2020, with abortion automatically decriminalised on 21 October 2019.[1][2][4] The appropriate regulations were introduced and the first same-sex marriage in Northern Ireland took place on 11 February 2020 inCarrickfergus,County Antrim.[15] The Northern IrelandDepartment of Health issued a statement outlining its intent to produce medical guidance to bring NHS abortion services in line with those provided in the rest of the United Kingdom on 1 April 2020.[16]
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The Act has formed part of the basis for two of several court cases around theattempted prorogation of Parliament byBoris Johnson:R (Miller) v The Prime Minister andCherry v Advocate General for Scotland. TheSupreme Court ruled that the prorogation was illegal,voiding its effect, but it did not do so based on the contents of this Act.
In theCourt of Appeal in Northern Ireland, anonymous litigators have appealed against aHigh Court verdict which ruled that the lack of same-sex marriage did not amount to a breach of theEuropean Convention on Human Rights. This judgment wasreserved after it was heard on 16 March 2018.[17]
On 3 October 2019, theHigh Court in Belfast ruled that former abortion legislation in Northern Ireland was incompatible with human rights legislation. However, in light of the impending enactment of the relevant provisions of this Act, the judge,Mrs. Justice Keegan, did not issue a formaldeclaration of incompatibility.[18]
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