For historical reasons the devolution settlement in Northern Ireland differs from those applying in Scotland and Wales and in particular the nature of their devolved powers reflects those that were held by its former Stormont Parliament (1922 – 1972) and aborted devolution schemes in the 1970s and 1980s, when short-lived assemblies existed in 1973-74 and 1982-86.
Devolved powers
In contrast to the devolution settlements with Scotland and Wales, in Northern Ireland there are three categories of legislative powers:
- transferred: the assembly can make primary and subordinate legislation,
- reserved: as above, but with the consent of the Secretary of State for Northern Ireland, a power to be exercised provided there exists cross-community consent, and to be made by Orders in Council (secondary legislation),
- excepted: as above, but in limited circumstances, and only with primary legislation.
These headings embrace the following powers:
- transferred[1]: everything that is neither reserved or excepted including matters such as health, social services, education, agriculture, justice, prisons and policing,
- reserved[2]: matters such as broadcasting, import and export controls, consumer safety and intellectual property,
- excepted[3]: matters, which would effectively establish Northern Ireland as independent of Britain, such as the constitution, international relations, defence and armed forces, currency and international treaties.
Northern Ireland Assembly
Voters elect 90 Members of the Legislative Assembly (MLAs), five from each of 18 multi-member constituencies. Elections are by proportional representation (the single transferable vote) and are scheduled to be every five years.
In contrast to members of the UK’s parliaments, MLAs do not take an oath of allegiance to the Sovereign, although they are required to give an undertaking against paramilitarism.
Northern Ireland Executive
- comprises the First Minister (FM) and Deputy First Minister (DFM) and eight departmental ministers,
- is jointly chaired by the FM and DFM, who are designated to have equal status, and who hold office jointly, so that if one resigns the other ceases to hold office,
- the FM is nominated by the largest political party of the largest political designation (all MLAs designate themselves to be either ‘Nationalist’, ‘Unionist’ or ‘other’) and the DFM is nominated by the next largest political designation,
- the seven of the eight executive ministers are nominated by the political parties in the Assembly with the share of political representation determined by the share of seats in the Assembly,
- the eighth minister, Minister for Justice, is appointed following a cross-community vote in the Assembly.
An unusual feature of this devolution settlement is that statutory powers are vested in individually constituted Executive Departments led by their own permanent secretary. Accordingly, each minister exercises executive authority independently of the others but must operate within the terms of the Ministerial Code. This legal structure means that judicial review is usually directed at individual departments rather than ‘Northern Ireland Ministers’ collectively, as in Scotland and Wales.
There have been ongoing difficulties with the peace process in Northern Ireland, meaning that for much of the time since the Assembly was created in December 1999, a power sharing executive has not operated:
- 1999 – 2000: power-sharing
- 2000 – 2007: direct control for all but a few months starting in late 2001
- 2007 – 2017: power-sharing
- 2017 – 2020: direct control
- 2020 – 2022: power-sharing
- May 2022: Sinn Fein emerged as the largest party in elections, the first time for a Nationalist, rather than a Unionist party. However, by late 2022 a new executive had not been formed as the Democratic Unionist Party (DUP) refused to nominate a DFM, causing the existing executive to remain in office on a caretaker basis.
Legislative competence
As with the Scottish and Welsh parliaments, an act outside the legislative competence of the Assembly is not law and similar provisions apply to require or empower officers to consider the issue of legislative competence.[4]
[1] Northern Ireland Act 1998, s4(1).
[2] Northern Ireland Act 1998, schedule 3.
[3] Northern Ireland Act 1998, schedule 2.