Examination of witness

Part of Northern Ireland (Ministers, Elections and Petitions of Concern) Bill – in a Public Bill Committee am 2:21 pm ar 29 Mehefin 2021.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Emma Little-Pengelly:

I think that Northern Ireland have found themselves in this position on previous occasions, and in fairness, on those occasions all Ministers have respected that an Executive is not in place, and largely abided by and operated under the decisions previously agreed by it. I agree completely with what Sir Jonathan Stephens said on the safeguard of the courts, but as we know, the court process is long; it requires somebody to take a challenge and often ends up in Ministers taking legal challenges against Ministers.

I would have thought, though, that there is an additional safeguard in that Ministers in Northern Ireland are required to operate lawfully—they cannot step outside of that. If a Minister wanted to take a decision that was significant or controversial or cross-cutting, it is very clear from both the jurisprudence and the legal cases on this, and in terms of what was said at the time of the passing of the Northern Ireland (St Andrews Agreement) Act 2006, that a Minister has no power—there is no vires for a Minister to take a decision that ought to have come to the Executive under the terms of the St Andrews Act amendments. Therefore, a Minister could not take a decision on a significant, controversial or cross-cutting matter, unless that had already been agreed by the Executive.

In the situation that you have outlined, Gavin, there would be no way to form an Executive. Without the First Minister and Deputy First Minister, you cannot have an Executive meeting and therefore those decisions cannot be decided on because an individual Minister does not have the power or the vires to do that. Therefore, he would be operating ultra vires. I presume that the permanent secretary or the accounting officer of that Department would advise the Minister of that, and that the Minister could not proceed because that would be unlawful under those circumstances.