Except so far as otherwise provided by or under this Act, nothing in this Act shall affect the operation in or in relation to Northern Ireland of any law in force on the appointed day or passed or made before that day, including in particular Orders in Council made under—
section 69 of the Government of Ireland Act 1920;
section 1(3) of the Northern Ireland (Temporary Provisions) Act 1972;
section 38 or 39 of the Northern Ireland Constitution Act 1973; or
Schedule 1 to the Northern Ireland Act 1974.
The laws continued by section 61 of the Government of Ireland Act 1920 shall continue to have effect to the extent provided for by that section (but with any modification necessary for adapting them to this Act).
No law made by the Assembly shall have effect so as to prejudice or diminish the rights or privileges of any pensioned officer of a local authority under the provisions of the Local Government (Ireland) Acts 1898 to 1919.
No provision of this Act shall—
affect the operation before the coming into force of that provision of any Northern Ireland legislation; or
render unlawful anything required or authorised to be done by any Act of Parliament, whenever passed.
Schedule 12 (which provides for the construction of certain references in existing laws) shall have effect, but subject to any provision made by or under this Act or by any Act of the Assembly.
95A. [Repealed]
96. Orders and regulations
An order under section 17(4), 25, 26, 27, 31(3) or (6), 38(6), 72(2) or 74(5) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
An order under section 4(6), 31(2), 34(4), 35(1), 55, 69C(12), 75(3)(a) or (d) or 80 or Schedule 1—
shall be made by statutory instrument; and
shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
Paragraph (b) of subsection (2) does not apply to an order under section 31(2) if the order declares that the Secretary of State considers it to be expedient for the order to be made without the approval mentioned in that paragraph.
An order containing a declaration under subsection (2A)—
shall be laid before Parliament after being made; and
shall cease to have effect if it is not approved by a resolution of each House of Parliament before the end of the period of 28 days beginning with the date on which it is made.
Subsection (2B)(b) does not prejudice the making of a new order.
In calculating the period of 28 days mentioned in subsection (2B)(b), no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
Regulations under section 87(4) shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of the House of Commons.
An order under section 61(7)—
shall be made by statutory instrument; and
shall not be made unless a draft has been laid before and approved by resolution of the House of Commons.
Regulations under section 87(5) shall be subject to negative resolution (within the meaning given by section 41(6) of the Interpretation Act Northern Ireland) 1954).
Rules under section 91 or 92—
shall be made by statutory instrument; and
shall not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
97. Financial provision
Any expenditure of the Secretary of State in consequence of this Act shall be paid out of money provided by Parliament.
98. Interpretation
In this Act—
“the appointed day” has the meaning given by section 3(1); “the Assembly” has the meaning given by section 4(5);
“the Belfast Agreement” means the agreement reached at multi-party talks on Northern Ireland set out in Command Paper 3883;
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all rights, powers, liabilities, obligations and restrictions created or arising by or under the EU Treaties; and
all remedies and procedures provided for by or under those Treaties;
“the Convention rights” has the same meaning as in the Human Rights Act 1998;
“cross-community support” has the meaning given by section 4(5);
“designated Nationalist” and “designated Unionist” have the meanings given by section 4(5);
“document” includes anything in which information is recorded in any form;
“enactment” includes any provision of this Act and any provision of, or of any instrument made under, Northern Ireland legislation;
“excepted matter” has the meaning given by section 4(1);
“financial year”, unless the context otherwise requires, means a year ending with 31st March;
“functions” includes powers and duties, and “confer”, in relation to functions, includes impose;
“international obligations” means any international obligations of the United Kingdom other than obligations to observe and implement EU law or the Convention rights;
“Minister”, unless the context otherwise requires, has the meaning given by section 7(3);
“Minister of the Crown” includes the Treasury;
“modify”, in relation to an enactment, includes amend or repeal;
“Northern Ireland” includes so much of the internal waters and territorial sea of the United Kingdom as are adjacent to Northern Ireland;
“Northern Ireland legislation” means—
Acts of the Parliament of Ireland;
Acts of the Parliament of Northern Ireland;
Orders in Council under section 1(3) of the Northern Ireland (Temporary Provisions) Act 1972;
Measures of the Northern Ireland Assembly established under section 1 of the Northern Ireland Assembly Act 1973;
Orders in Council under Schedule 1 to the Northern Ireland Act 1974;
Acts of the Assembly; and
Orders in Council under section 85;
“the Northern Ireland zone” means the sea within British fishery limits which is adjacent to Northern Ireland;
“the pledge of office” has the meaning given by section 16C(14);
“political opinion” and “religious belief” shall be construed in accordance with Article 2(3) and (4) of the Fair Employment and Treatment (Northern Ireland) Order 1998;
“proceedings”, in relation to the Assembly, includes proceedings of any committee;
“property” includes rights and interests of any description;
“reserved matter” has the meaning given by section 4(1);
“the St Andrews Agreement” means the agreement reached on 13 October 2006 at multi-party talks on Northern Ireland held at St Andrews;
“subordinate legislation” has the same meaning as in the Interpretation Act 1978 and also includes an instrument made under Northern Ireland legislation;
“transferred matter” has the meaning given by section 4(1).
For the purposes of this Act, a provision of any enactment, Bill or subordinate legislation deals with the matter, or each of the matters, which it affects otherwise than incidentally.
For the purposes of this Act, a provision of any Act or Bill which modifies a provision of—
the Agricultural Wages (Regulation) (Northern Ireland) Order 1977;
the Employment Rights (Northern Ireland) Order 1996; or
the Industrial Tribunals (Northern Ireland) Order 1996,
which is amended or applied by or under the National Minimum Wage Act 1998 shall not be treated as dealing with a matter falling within the subject-matter of that Act if the modification affects the national minimum wage and other employment matters in the same way.
For the purposes of this Act, a provision of an Act of the Assembly or of subordinate legislation discriminates against any person or class of persons if it treats that person or that class less favourably in any circumstances than other persons are treated in those circumstances by the law for the time being in force in Northern Ireland.
For those purposes a person discriminates against another person or a class of persons if he treats that other person or that class less favourably in any circumstances than he treats or would treat other persons in those circumstances.
No provision of an Act of the Assembly or of subordinate legislation, and no making, confirmation or approval of a provision of subordinate legislation, shall be treated for the purposes of this Act as discriminating if the provision has the effect of safeguarding national security or protecting public safety or public order.
No other act done by any person shall be treated for the purposes of this Act as discriminating if—
the act is done for the purpose of safeguarding national security or protecting public safety or public order; and
the doing of the act is justified by that purpose.
Her Majesty may by Order in Council determine, or make provision for determining, for such purposes of this Act as may be specified, any boundary between—
the waters or parts of the sea which are to be treated as adjacent to Northern Ireland; and
those which are not,
and may make different determinations or provisions for different purposes.
No recommendation shall be made to Her Majesty to make an Order in Council under subsection (8) unless a draft of the Order has been laid before and approved by resolution of each House of Parliament.
99. Minor and consequential amendments
The enactments mentioned in Schedule 13 shall have effect subject to the amendments there specified, being minor amendments and amendments consequential on the provisions of this Act.
100. Transitional provisions, savings and repeals
The transitional provisions and savings contained in Schedule 14 shall have effect; but nothing in this subsection shall be taken as prejudicing the operation of sections 16 and 17 of the Interpretation Act 1978 (which relate to the effect of repeals).
The enactments specified in Schedule 15, which include some that are spent, are hereby repealed to the extent specified in the third column of that Schedule.
101. Short title and commencement
This Act may be cited as the Northern Ireland Act 1998.
The following provisions shall come into force on the day on which this Act is passed—
sections 3, 55, 86, 93, 96 and 98;
paragraph 20 of Schedule 13 and section 99 so far as relating to that paragraph;
in Schedule 15, the repeal of section 31(4) to (6) of the Northern Ireland Constitution Act 1973 and section 100(2) so far as relating to that repeal; and
this section.
The remaining provisions of this Act (except Parts II and III) shall come into force on such day as the Secretary of State may by order made by statutory instrument appoint; and different days may be appointed for different purposes.
Schedules
Schedule 1. Polls for the purposes of section 1
The Secretary of State may by order direct the holding of a poll for the purposes of section 1 on a date specified in the order.
Subject to paragraph 3, the Secretary of State shall exercise the power under paragraph 1 if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be part of the United Kingdom and form part of a united Ireland.
The Secretary of State shall not make an order under paragraph 1 earlier than seven years after the holding of a previous poll under this Schedule.
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An order under this Schedule directing the holding of a poll shall specify—
the persons entitled to vote; and
the question or questions to be asked.
An order—
may include any other provision about the poll which the Secretary of State thinks expedient (including the creation of criminal offences); and
may apply (with or without modification) any provision of, or made under, any enactment.
Schedule 2. Excepted Matters
The Crown, including the succession to the Crown and a regency, but not—
functions of the First Minister and deputy First Minister, the Northern Ireland Ministers or the Northern Ireland departments, or functions in relation to Northern Ireland of any Minister of the Crown;
property belonging to Her Majesty in right of the Crown or belonging to a government department or held in trust for Her Majesty for the purposes of a government department (other than property used for the purposes of the armed forces of the Crown or the Ministry of Defence Police);
the foreshore or the sea bed or subsoil or their natural resources so far as vested in Her Majesty in right of the Crown.
The Parliament of the United Kingdom; parliamentary elections, including the franchise; disqualifications for membership of that Parliament.
International relations, including relations with territories outside the United Kingdom, the European Union (and its institutions) and other international organisations and extradition, and international development assistance and co-operation, but not-
[Repealed]
co-operation between the Police Service of Northern Ireland and the Garda Síochána with respect to any of the following matters—
transfers, secondments, exchanges or training of officers;
communications (including liaison and information technology);
joint investigations;
disaster planning;
the exercise of legislative powers so far as required for giving effect to any agreement or arrangement entered into—
by a Minister or junior Minister participating, by reason of any provision of section 52A or 52B, in a meeting of the North-South Ministerial Council or the British-Irish Council; or
by, or in relation to the activities of, any body established for implementing, on the basis mentioned in paragraph 11 of Strand Two of the Belfast Agreement, policies agreed in the North-South Ministerial Council;
observing and implementing international obligations, obligations under the Human Rights Convention and obligations under EU law.
In this paragraph “the Human Rights Convention” means the following as they have effect for the time being in relation to the United Kingdom—
the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950; and
any Protocols to that Convention which have been ratified by the United Kingdom.
The defence of the realm; trading with the enemy; the armed forces of the Crown but not any matter within paragraph 10 of Schedule 3; war pensions; the Ministry of Defence Police.
Control of nuclear, biological and chemical weapons and other weapons of mass destruction.
Dignities and titles of honour.
Treason but not powers of arrest or criminal procedure.
Nationality; immigration, including asylum and the status and capacity of persons in the United Kingdom who are not British citizens; free movement of persons within the European Economic Area; issue of travel documents.
The following matters—
taxes or duties under any law applying to the United Kingdom as a whole;
stamp duty levied in Northern Ireland before the appointed day; and
taxes or duties substantially of the same character as those mentioned in sub-paragraph (a) or (b).
Child Trust Funds.
[Omitted]
The operation of the Small Charitable Donations Act 2012.
The following matters—
national insurance contributions;
the control and management of the Northern Ireland National Insurance Fund and payments into and out of that Fund;
reductions in and deductions from national insurance contributions;
national insurance rebates;
payments out of public money to money purchase pension schemes;
contributions equivalent premiums;
rights to return to the state pension scheme.
Sub-paragraph (a) includes the determination, payment, collection and return of national insurance contributions and matters incidental to those matters.
Sub-paragraph (b) does not include payments out of the Northern Ireland National Insurance Fund which relate to—
the benefits mentioned in section 143(1) of the Social Security Administration (Northern Ireland) Act 1992, or benefits substantially of the same character as those benefits; or
administrative expenses incurred in connection with matters not falling within sub-paragraphs (a) to (g).
Sub-paragraphs (b) and (e) do not include payments out of or into the Northern Ireland National Insurance Fund under—
section 172(1)(b), (2)(a) or (7)(c) of the Pension Schemes (Northern Ireland) Act 1993; or
Article 202, 227, 234 or 252 of the Employment Rights (Northern Ireland) Order 1996.
In this paragraph “contributions equivalent premium” has the meaning given by section 51(2) of the Pension Schemes (Northern Ireland) Act 1993.
Tax credits under Part 1 of the Tax Credits Act 2002.
Health in pregnancy grant, Child benefit and guardian’s allowance.
The appointment and removal of judges of the Court of Judicature of Northern Ireland, holders of offices listed in column 1 of Schedule 3 to the Judicature (Northern Ireland) Act 1978, county court judges, recorders, resident magistrates, lay magistrates, justices of the peace, members of juvenile court panels, coroners, the Chief and other Social Security Commissioners for Northern Ireland, the Chief and other Child Support Commissioners for Northern Ireland and the President and other members of the Lands Tribunal for Northern Ireland.
The Supreme Court, but not rights of appeal to the Supreme Court or legal aid for appeals to the Supreme Court.
12
Elections, including the franchise, in respect of the Northern Ireland Assembly, the European Parliament and district councils.
This paragraph does not apply to—
the division of local government districts into areas (“district electoral areas”) for the purposes of elections to the councils of those districts,
the determination of the names of district electoral areas, or
the determination of the number of councillors to be elected for a district electoral area or a local government district.
The subject-matter of the Political Parties, Elections and Referendums Act 2000 with the exception of Part IX (political donations etc. by companies).This paragraph does not include the funding of political parties for the purpose of assisting members of the Northern Ireland Assembly connected with such parties to perform their Assembly duties.
Coinage, legal tender and bank notes.
The National Savings Bank.
The subject-matter of the Protection of Trading Interests Act 1980.
National security (including the Security Service, the Secret Intelligence Service and the Government Communications Headquarters); special powers and other provisions for dealing with terrorism or subversion; the subject-matter of—
the Official Secrets Acts 1911 and 1920;
Chapter I of Part I of the Regulation of Investigatory Powers Act 2000, except so far as relating to the prevention or detection of serious crime (within the meaning of that Act); and
the Official Secrets Act 1989, except so far as relating to any information, document or other article protected against disclosure by section 4(2) (crime) and not by any other provision of sections 1 to 4.
Nuclear energy and nuclear installations, including nuclear safety, security and safeguards, and liability for nuclear occurrences, but not the subject-matter of—
section 3(5) to (7) of the Environmental Protection Act 1990 (emission limits); or
the Radioactive Substances Act 1993.
Regulation of sea fishing outside the Northern Ireland zone (except in relation to Northern Ireland fishing boats).In this paragraph “Northern Ireland fishing boat” means a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995 and whose entry in the register specifies a port in Northern Ireland as the port to which the vessel is to be treated as belonging.
Regulation of activities in outer space.
Regulation of activities in Antarctica (which for these purposes has the meaning given by section 1 of the Antarctic Act 1994).
Any matter with which a provision of the Northern Ireland Constitution Act 1973, other than section 36(1)(c), solely or mainly deals.
Any matter with which a provision of this Act falling within the following sub-paragraphs solely or mainly deals—
Parts I and II;
Part III except sections 19, 20, 22, 23(2) to (4) F16, 28, 28A, 28B, 28D and 28E;
Part IV except sections 40, 43, 44(8) and 50 and Schedule 5;
in Part V, sections [F1752A to 52C]F17 and 54;
Part VI except sections 57(1) and 67;
in Part VII, sections 69B, 71(1) and (2) and (3) to (5), 74(5) and (6), 76 and 78;
in Part VIII, sections 79 to 83 and Schedule 10.
This paragraph does not apply to—
any matter in respect of which it is stated by this Act that provision may be made by Act of the Assembly;
any matter to which a description specified in this Schedule or Schedule 3 is stated not to apply; or
any matter falling within a description specified in Schedule 3.
Schedule 3. Reserved Matters
The conferral of functions in relation to Northern Ireland on any Minister of the Crown.
Property belonging to Her Majesty in right of the Crown or belonging to a department of the Government of the United Kingdom or held in trust for Her Majesty for the purposes of such a department (other than property used for the purposes of the armed forces of the Crown or the Ministry of Defence Police).
Navigation, including merchant shipping, but not harbours or inland waters.
Civil aviation but not aerodromes.
The foreshore and the sea bed and subsoil and their natural resources (except so far as affecting harbours); submarine pipe-lines; submarine cables, including any land line used solely for the purpose of connecting one submarine cable with another.
Domicile.
The subject-matter of the Postal Services Act 2000.This paragraph does not include financial assistance for the provision of services (other than postal services and services relating to postal or money orders) to be provided from public post offices.
In this paragraph “postal services” and “public post offices” have the same meanings as in the Postal Services Act 2000.
The alteration of the number of members of the Assembly returned for each constituency.This paragraph does not include—
the alteration of that number to a number lower than five or higher than six, or
the provision of different numbers for different constituencies.
Disqualification for membership of the Assembly; privileges, powers and immunities of the Assembly, its members and committees greater than those conferred by section 50.
9
The following matters—
the subject-matter of the following provisions of the Regulation of Investigatory Powers Act 2000(2)—
Chapter 1 of Part 1, so far as relating to the prevention or detection of serious crime (within the meaning of that Act), and
so far as relating to the prevention or detection of crime (within the meaning of that Act) or the prevention of disorder—
Chapter 2 of Part 1, and
Parts 2 and 3;
in relation to the prevention or detection of crime, the subject-matter of Part 3 of the Police Act 1997(3);
the operation of—
sections 21 to 40 of, and Schedules 3 and 4 to, the Justice and Security (Northern Ireland) Act 2007(4), and
section 102 of, and Schedule 12 to, the Terrorism Act 2000(5);
in relation to terrorism, the exercise of the Royal prerogative of mercy;
the operation of sections 1 to 8 of, and Schedule 1 to, the Justice and Security (Northern Ireland) Act 2007 and the operation of Part 1 of the Criminal Procedure and Investigations Act 1996(6) where a certificate under section 1 of the 2007 Act has been issued;
in relation to the regulation of drugs or other substances through the criminal law (including offences, exceptions to offences, penalties, powers of arrest and detention, prosecutions and the treatment of offenders) or otherwise in relation to the prevention or detection of crime—
the subject-matter of the Misuse of Drugs Act 1971(7);
the subject-matter of sections 12 and 13 of the Criminal Justice (International Co-operation) Act 1990(8);
the National Crime Agency;
in relation to prisons, the accommodation of persons in separated conditions on the grounds of security, safety or good order.
In sub-paragraph (1)(h) “prisons” includes any institution for the detention of persons because of their involvement, or suspected involvement, in crime.
This paragraph does not include any excepted matters or any matter within paragraph 10 of this Schedule.
[Omitted]
10
The subject-matter of the Public Processions (Northern Ireland) Act 1998(1).
In relation to the maintenance of public order, the armed forces of the Crown (including the conferring of powers, authorities, privileges or immunities on members of the armed forces for the purposes of the maintenance of public order).
This paragraph does not include any matter within paragraph 17 of Schedule 2.
The operation of the temporary provisions, as defined in section 47 of the Police (Northern Ireland) Act 2000(1).
[Omitted]
12
Items for the time being specified in Article 45(1) or (2) of the Firearms (Northern Ireland) Order 2004(1); and the subject-matter of Article 45(10) of that Order.
The security of explosives, including—
the prevention of loss or theft of explosives,
the prevention of the use of explosives for wrongful purposes, and
the detection, identification and traceability of explosives.
This sub-paragraph does not include the security of fireworks, or the licensing of shotfirers, or the subject-matter of section 2 of the Explosives Act (Northern Ireland) 1970(2).
Civil defence.
The subject-matter of Part 2 of the Civil Contingencies Act 2004.
[Omitted]
[Omitted]
[Omitted]
The Civil Service Commissioners for Northern Ireland.
[Omitted]
The subject-matter of sections 149 to 151 of and Schedules 5 and 5A to the Social Security Administration (Northern Ireland) Act 1992 (Social Security Advisory Committee and Industrial Injuries Advisory Council).
The subject-matter of the Vaccine Damage Payment Scheme.
Import and export controls and trade with any place outside the United Kingdom but not—
the furtherance of the trade of Northern Ireland or the protection of traders in Northern Ireland against fraud;
services in connection with, or the regulation of, the quality, insurance, transport, marketing or identification of agricultural or food products, including livestock;
the prevention of disease or the control of weeds and pests;
aerodromes and harbours;
any matter within paragraph 4 of Schedule 2.
The subject-matter of the National Minimum Wage Act 1998.
The subject-matter of the following provisions of the Pension Schemes Act 1993—
section 6(1), (2)(a)(i), (iii) and (iv) and (b), (3), (4) and (8) (registration of occupational and personal pension schemes);
section 145 (Pensions Ombudsman).
The following matters—
financial services, including investment business, banking and deposit-taking, collective investment schemes and insurance;
financial markets, including listing and public offers of securities and investments, transfer of securities and insider dealing.
This paragraph does not include the subject-matter of—
the Industrial and Provident Societies Act Northern Ireland) 1969;
the Credit Unions (Northern Ireland) Order 1985;
the Companies (Northern Ireland) Order 1986;
the Insolvency (Northern Ireland) Order 1989;
the Companies (Northern Ireland) Order 1990;
the Companies (No.2) (Northern Ireland) Order 1990;
the Open-Ended Investment Companies (Investment Companies with Variable Capital) Regulations (Northern Ireland) 1997.
The subject-matter of—
the Building Societies Act 1986;
the Friendly Societies Act 1992.
The subject-matter of the Money Laundering Regulations 2007, but in relation to any type of business.
The subject-matter of the Transfer of Funds (Information on the Payer) Regulations 2007, but in relation to any type of business.
Regulation of anti-competitive practices and agreements; abuse of dominant position; monopolies and mergers.
Intellectual property but not the subject-matter of Parts I and II of the Plant Varieties Act 1997 (plant varieties and the Plant Varieties and Seeds Tribunal).
Units of measurement and United Kingdom primary standards.
Telecommunications; wireless telegraphy; the provision of programme services (within the meaning of the Broadcasting Act 1990); internet services; electronic encryption; the subject matter of Part II of the Wireless Telegraphy Act 1949 (electromagnetic disturbance).
The National Lottery (except in so far as any matter within Schedule 2 is concerned).
Xenotransplantation.
Surrogacy arrangements, within the meaning of the Surrogacy Arrangements Act 1985, including the subject-matter of that Act.
The subject-matter of the Human Fertilisation and Embryology Act 1990.
Human genetics.
Research Councils within the meaning of the Science and Technology Act 1965.
The Arts and Humanities Research Council (as defined by section 1 of the Higher Education Act 2004).
Areas in which industry may qualify for assistance under Part III of the Industrial Development Act 1982.
Consumer safety in relation to goods.
Technical standards and requirements in relation to products in pursuance of an obligation under EU law but not standards and requirements in relation to food, agricultural or horticultural produce, fish or fish products, seeds, animal feeding stuffs, fertilisers or pesticides.
The subject-matter of section 3(5) to (7) of the Environmental Protection Act 1990 (emission limits); the environmental protection technology scheme for research and development in the United Kingdom.
The subject-matter of—
the Data Protection Act 1984;
the Data Protection Act 1998; and
Council Directive 95/46/EC (protection of individuals with regard to the processing of personal data and free movement of such data).
Oaths and declarations (including all undertakings and affirmations, by whatever name) other than those within section 77(3).
41A
The division of local government districts into areas (“district electoral areas”) for the purposes of elections to the councils of those districts.
The determination of the names of district electoral areas.
The determination of the number of councillors to be elected for a district electoral area or a local government district.
Any matter with which a provision of this Act falling within the following sub-paragraphs solely or mainly deals—
in Part III, sections 19, 20, 28, 28A and 28B;
in Part VII, sections 68 to 69A, 69C to 70, 71(2A) to (2C) and Schedule 7;
in Part VII, sections 73, 74(3) and (4), 75 and 77(1), (2) and (4) to (8) and Schedules 8 and 9;
in Part VIII, sections 90 to 93 and Schedule 11.
This paragraph does not apply to—
any matter in respect of which it is stated by this Act that provision may be made by Act of the Assembly; or
any matter to which a description specified in this Schedule or Schedule 2 is stated not to apply.
Schedules 4-9. [Schedules 4-9 Omitted due to lenghth – full text of schedules can be found online at http://www.legislation.gov.uk/ukpga/1998/47/schedules]
Schedule 10. Devolution Issues
Part 1. Preliminary
In this Schedule “devolution issue” means—
a question whether any provision of an Act of the Assembly is within the legislative competence of the Assembly;
a question whether a purported or proposed exercise of a function by a Minister or Northern Ireland department is, or would be, invalid by reason of section 24;
a question whether a Minister or Northern Ireland department has failed to comply with any of the Convention rights, any obligation under EU law or any order under section 27 so far as relating to such an obligation; or
any question arising under this Act about excepted or reserved matters.
A devolution issue shall not be taken to arise in any proceedings merely because of any contention of a party to the proceedings which appears to the court or tribunal before which the proceedings take place to be frivolous or vexatious.
Part 2. Proceedings in Northern Ireland
Subheading 1. Application of Part II
This Part of this Schedule applies in relation to devolution issues in proceedings in Northern Ireland.
Subheading 2. Institution of proceedings
4
Proceedings for the determination of a devolution issue may be instituted or defended by the Attorney General or the Attorney General for Northern Ireland.
The First Minister and the deputy First Minister acting jointly may defend any such proceedings.
This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.
Subheading 3. Notice of devolution issue
A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the Attorney General, the Attorney General for Northern Ireland, the First Minister and the deputy First Minister (unless the person to whom the notice would be given is a party to the proceedings).
A person to whom notice is given in pursuance of paragraph 5 or, where such notice is given to the First Minister and the deputy First Minister, those Ministers acting jointly may take part as a party in the proceedings, so far as they relate to a devolution issue.
Subheading 4. Reference of devolution issue to Court of Appeal
A court, other than the Supreme Court or the Court of Appeal in Northern Ireland, may refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland.
A tribunal from which there is no appeal shall refer any devolution issue which arises in any proceedings before it to the Court of Appeal in Northern Ireland; and any other tribunal may make such a reference.
Subheading 5. References from Court of Appeal to Supreme Court
The Court of Appeal in Northern Ireland may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 7 or 8) to the Supreme Court.
Subheading 6. Appeals from Court of Appeal to Supreme Court
An appeal against a determination of a devolution issue by the Court of Appeal in Northern Ireland on a reference under paragraph 7 or 8 shall lie to the Supreme Court, but only with permission of the Court of Appeal in Northern Ireland or, failing such permission, with permission of the Supreme Court.
Part 3. Proceedings in England and Wales
Subheading 1. Application of Part III
This Part of this Schedule applies in relation to devolution issues in proceedings in England and Wales.
Subheading 2. Institution of proceedings
12
Proceedings for the determination of a devolution issue may be instituted or defended by the Attorney General.
The Attorney General for Northern Ireland or the First Minister and the deputy First Minister acting jointly may defend any such proceedings.
This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.
Subheading 3. Notice of devolution issue
A court or tribunal shall order notice of any devolution issue which arises in any proceedings before it to be given to the Attorney General, the Attorney General for Northern Ireland, the First Minister and the deputy First Minister (unless the person to whom the notice would be given is a party to the proceedings).
A person to whom notice is given in pursuance of paragraph 13 or, where such notice is given to the First Minister and the deputy First Minister, those Ministers acting jointly may take part as a party in the proceedings, so far as they relate to a devolution issue.
Subheading 4. Reference of devolution issue to High Court or Court of Appeal
A magistrates’ court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the High Court.
16
A court may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Court of Appeal.
Sub-paragraph (1) does not apply to—
a magistrates’ court, the Court of Appeal or the Supreme Court; or
the High Court if the devolution issue arises in proceedings on a reference under paragraph 15.
A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Court of Appeal; and any other tribunal may make such a reference.
A court, other than the Supreme Court or the Court of Appeal, may refer any devolution issue which arises in criminal proceedings before it to—
the High Court (if the proceedings are summary proceedings); or
the Court of Appeal (if the proceedings are proceedings on indictment).
Subheading 5. References from Court of Appeal to Supreme Court
The Court of Appeal may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 16, 17 or 18) to the Supreme Court.
Subheading 6. Appeals from superior courts to Supreme Court
An appeal against a determination of a devolution issue by the High Court or the Court of Appeal on a reference under paragraph 15, 16, 17 or 18 shall lie to the Supreme Court, but only with permission of the High Court or the Court of Appeal or, failing such permission, with permission of the Supreme Court.
Part 4. Proceedings in Scotland
Subheading 1. Application of Part IV
This Part of this Schedule applies in relation to devolution issues in proceedings in Scotland.
Subheading 2. Institution of proceedings
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Proceedings for the determination of a devolution issue may be instituted or defended by the Advocate General for Scotland.
The Attorney General for Northern Ireland or the First Minister and the deputy First Minister acting jointly may defend any such proceedings.
This paragraph is without prejudice to any power to institute or defend proceedings exercisable apart from this paragraph by any person.
Subheading 3. Intimation of devolution issue
Intimation of any devolution issue which arises in any proceedings before a court or tribunal shall be given to the Advocate General for Scotland, the Attorney General for Northern Ireland, the First Minister and the deputy First Minister (unless the person to whom the intimation would be given is a party to the proceedings).
A person to whom intimation is given in pursuance of paragraph 23 or, where such intimation is given to the First Minister and the deputy First Minister, those Ministers acting jointly may take part as a party in the proceedings, so far as they relate to a devolution issue.
Subheading 4. Reference of devolution issue to higher court
A court, other than the Supreme Court or any court consisting of three or more judges of the Court of Session, may refer any devolution issue which arises in proceedings (other than criminal proceedings) before it to the Inner House of the Court of Session.
A tribunal from which there is no appeal shall refer any devolution issue which arises in proceedings before it to the Inner House of the Court of Session; and any other tribunal may make such a reference.
A court, other than any court consisting of two or more judges of the High Court of Justiciary, may refer any devolution issue which arises in criminal proceedings before it to the High Court of Justiciary.
Subheading 5. References from superior courts to Supreme Court
Any court consisting of three or more judges of the Court of Session may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 25 or 26) to the Supreme Court.
Any court consisting of two or more judges of the High Court of Justiciary may refer any devolution issue which arises in proceedings before it (otherwise than on a reference under paragraph 27) to the Supreme Court.
Subheading 6. Appeals from superior courts to Supreme Court
An appeal against a determination of a devolution issue by the Inner House of the Court of Session on a reference under paragraph 25 or 26 shall lie to the Supreme Court.
An appeal against a determination of a devolution issue by—
a court of two or more judges of the High Court of Justiciary (whether in the ordinary course of proceedings or on a reference under paragraph 27); or
a court of three or more judges of the Court of Session from which there is no appeal to the Supreme Court apart from this paragraph,
shall lie to the Supreme Court, but only with permission of the court concerned or, failing such permission, with permission of the Supreme Court.
Part 5. General
Subheading 1
[Repealed]
[Repealed]
Subheading 2. Direct references to Supreme Court
The Attorney General, the Attorney General for Northern Ireland, the First Minister and the deputy First Minister acting jointly or the Advocate General for Scotland may require any court or tribunal to refer to the Supreme Court any devolution issue which has arisen in proceedings before it to which he is or they are a party.
The Attorney General, the Attorney General for Northern Ireland, the First Minister and the deputy First Minister acting jointly or the Advocate General for Scotland may refer to the Supreme Court any devolution issue which is not the subject of proceedings.
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This paragraph applies where a reference is made under paragraph 34 in relation to a devolution issue which relates to the proposed exercise of a function by a Northern Ireland Minister or department.
The person making the reference shall notify the Northern Ireland Minister or department of that fact.
No Northern Ireland Minister or department shall exercise the function in the manner proposed during the period beginning with the receipt of the notification under sub-paragraph (2) and ending with the reference being decided or otherwise disposed of.
Proceedings relating to any possible failure by a Northern Ireland Minister or department to comply with sub-paragraph (3) may be instituted by the Attorney General for Northern Ireland.
Sub-paragraph (4) is without prejudice to any power to institute proceedings exercisable apart from that sub-paragraph by any person.
Subheading 3. Delegation by First Ministers
The First Minister and the deputy First Minister acting jointly may determine that a Minister or Northern Ireland department specified in the determination may exercise on their behalf, in relation to any proceedings under this Schedule so specified, any power conferred on them by this Schedule.
Subheading 4. Expenses
37
A court or tribunal before which any proceedings take place may take account of any additional expense of the kind mentioned in sub-paragraph (3) in deciding any question as to costs or expenses.
In deciding any such question, the court or tribunal may award the whole or part of the additional expense as costs or expenses to the party who incurred it (whatever the decision on the devolution issue).
The additional expense is any additional expense which the court or tribunal considers that any party to the proceedings has incurred as a result of the participation of any person in pursuance of paragraph 6, 14 or 24.
Subheading 5. Procedure of courts and tribunals
Any power to make provision for regulating the procedure before any court or tribunal shall include power to make provision for the purposes of this Schedule including, in particular, provision—
for prescribing the stage in the proceedings at which a devolution issue is to be raised or referred;
for the staying or sisting of proceedings for the purpose of any proceedings under this Schedule; and
for determining the manner in which and the time within which any notice or intimation is to be given.
Subheading 6. Bail and legal aid in criminal proceedings
39
Sub-paragraph (3) applies where a devolution issue arises in proceedings against a person (“the defendant”) for an offence and the issue is referred to the Court of Appeal in Northern Ireland under paragraph 7.
Sub-paragraphs (3) and (4) apply where such an issue arises in such proceedings and—
the issue is referred by the Court of Appeal to the Supreme Court under paragraph 9 or 33; or
the issue is determined by the Court of Appeal under paragraph 7 and—
an appeal to the Supreme Court against the determination is brought under paragraph 10; or
an application for leave to bring such an appeal is made to the Court of Appeal under that paragraph.
The Court of Appeal may, if it thinks fit, on the application of the defendant, admit him to bail pending the determination of the reference, appeal or application.
The Court of Appeal may at any time when it appears to the Court of Appeal—
that it is desirable in the interests of justice that the defendant should have legal aid; and
that he has not sufficient means to obtain that aid,
assign to him a solicitor and counsel, or counsel only, in the reference, appeal or application.
If, on a question of granting a person free legal aid under sub-paragraph (4), there is a doubt—
whether it is desirable in the interests of justice that he should have legal aid; or
whether he has sufficient means to obtain that aid,
the doubt shall be resolved in favour of granting him free legal aid.
The fees of any counsel, and the expenses and fees of any solicitor, assigned to a person under sub-paragraph (4) shall be defrayed, up to an amount allowed by the Master (Taxing Office), by the Lord Chancellor.
Where a devolution issue arises as mentioned in sub-paragraph (1) of paragraph 39 and—
the issue is referred to the Supreme Court under paragraph 9 or 33; or
the issue is determined by the Court of Appeal in Northern Ireland under paragraph 7 and—
an appeal to the Supreme Court against the determination is brought under paragraph 10; or
an application for special leave to bring such an appeal is made to the Supreme Court under that paragraph,
sub-paragraphs (3) to (6) of paragraph 39 shall apply as if the references to the Court of Appeal were references to the Supreme Court.
Subheading 7. Interpretation
Any duty or power conferred by this Schedule to refer a devolution issue to a court shall be construed as a duty or power to refer the issue to the court for decision.
Schedules 11-15. [Schedules 11-15 Omitted due to lenghth – full text of schedules can be found online at http://www.legislation.gov.uk/ukpga/1998/47/schedules]
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