Northern Ireland (Executive Formation and Exercise of Functions) Act 2018

3 Exercise of departmental functions during period for Executive formation

(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 period for forming an Executive if the officer is satisfied that it is in the public interest to exercise the function during that period.

(2) The Secretary of State must publish guidance about the exercise of functions in reliance on subsection (1), including guidance as to the principles to be taken into account in deciding whether or not to exercise a function.

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

(4) 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 2 March 2017 and ending when this Act is passed.

(5) 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 having prevented the exercise of that function as mentioned in subsection (1) or (4).

(6) Subsections (4) and (5) do not apply in relation to the exercise of a function before this Act is passed 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 those subsections 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 subsection (1).

(7) Subsections (1) to (6) 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.

(8) No inference is to be drawn from subsections (1) to (7) as to whether or not a senior officer of a Northern Ireland department would otherwise have been prevented from exercising departmental functions.

(9) Before publishing guidance under subsection (2) the Secretary of State must have regard to any representations made by members of the Northern Ireland Assembly.

(10) In this section—

• “enactment” includes any provision of, or of any instrument made under, Northern Ireland legislation (within the meaning given by section 98 of the Northern Ireland Act 1998);

• “Northern Ireland Minister” includes the First Minister and the deputy First Minister;

• “the period for forming an Executive” has the meaning given by section 1(5);

• “senior officer of a Northern Ireland department” has the same meaning as in the Departments (Northern Ireland) Order 1999 (see Article 2(3) of that Order).