Legislation Committee No 1

Response to the consultation on the Proposed Measure in relation to the Independent Review Panel Recommendation

Note from Keith Bush, Director of Legal Services, supplementing oral evidence given to Legislation Committee No.1 on 28 January 2010

At last Thursday's meeting (28 January 2010) the Committee asked me to provide a note on the issue of whether it would be possible to provide a mechanism by which the disqualifications set out in Schedule 1 to the Measure could be amended to add or remove a particular ground of disqualification without requiring an amending Measure.

When government puts forward legislation it is common to include the power for Ministers to amend this kind of provision by Statutory Instrument (usually subject to approval by the Assembly).

This is not, however, government legislation. It is concerned with the functions of the Assembly itself and it would therefore not be appropriate simply to delegate to Ministers the power to amend it.

There is one provision on the statute book which deals with a somewhat similar situation. Section 5 of the House of Commons Disqualification Act 1975 provides a mechanism for amending Schedule 1 to the Act (which sets out the offices whose holders are disqualified from membership of the House of Commons). A Statutory Instrument is required (in the form of an Order in Council) but this can only be made in accordance with a resolution of the House of Commons. So the House resolves that Schedule 1 to the Act be amended and then a Statutory Instrument is made giving legislative effect to that. (Naturally, the amending SI does not require Parliamentary approval because it is giving effect to the will of the House of Commons.)

If it were felt that a mechanism is needed so as to enable the Assembly to amend Schedule 1 to the Measure without the need for an amending Measure, I am confident that this could be achieved by a provision similar to that in Section 5 of the House of Commons Disqualification Act 1975.