Northern Ireland Assembly Flax Flower Logo

SESSION 2002– 2003

FIRST REPORT OF THE EXAMINER OF STATUTORY RULES

Agriculture and Rural Development Committee

(S.R. 2002 Nos. 210, 225, 246, 249, 250, 257 and 259)

Employment and Learning Committee

(S.R. 2002 Nos. 224, 241, 245 and 265)

Enterprise, Trade and Investment Committee

(S.R. 2002 No. 223)

Environment Committee

(S.R. 2002 Nos. 231, 239, 248 and 256)

Finance and Personnel Committee

(S.R. 2002 Nos. 228 and 229)

Health, Social Services and Public Safety Committee

(S.R. 2002 Nos. 217, 219, 221, 226, 238, 262, 263 and 264)

Social Development Committee

(S.R. 2002 Nos. 222, 236, 237, 243, 247 and 254)

  1. In accordance with the revised delegations under Standing Order 41 given to the Examiner of Statutory Rules by the appropriate Committees in October and November 2001, I submit my report on the statutory rules listed in the Appendix. At the same time, I am sending a copy of this report to each of the Departments concerned.
  2. All of the statutory rules considered in this report, except S.R. 2002 No. 243 and S.R. 2002 No. 247, are subject to negative resolution; S.R 2002 No. 243 and S.R. 2002 No. 247 (on social security and child support) are subject to the confirmatory procedure.
  3. I draw the attention of the Assembly and the Agriculture and Rural Development committee to the Animal By-Products (Revocation) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 210) on the ground that there is a breach of the 21-day rule (that is to say, the well-established rule of practice in rules subject to negative resolution whereby the rule-making authority should allow at least 21 days between the laying of a statutory rule and its coming into operation). The Regulations were made on 29 May 2002 and came into operation on 8 July 2002; but they were not laid until 27 June 2002, whereas it appears that they were available on the Internet (HMSO Website: Statutory Rules of Northern Ireland) on or around 12 June 2002, and indeed it seems from the Department's explanation that the printed copies were available to it on 11 June 2002. I raised the question of the laying of the Regulations with the Department of Agriculture and Rural Development on 27 June 2002 by e-mail and received a reply by e-mail the same day, advising that the Department was arranging to have the Regulations laid that day, as they indeed were. The Department has apologised for what was clearly an oversight on the part of a new member of staff.
  4. I draw the attention of the Assembly and the Agriculture and Rural Development Committee to the Transmissible Spongiform Encephalopathy Regulations (Northern Ireland) 2002 (S.R. 2002 No. 225) and make a number of points on the drafting of the Regulations.
  5. Firstly, the expression "sworn information" is used in a number of places (for example, regulations 4(4) and 28(4)). Under the Magistrates' Courts (Northern Ireland) Order 1981 "complaint" includes "information", but I suggested to the Department of Agriculture and Rural Development that "complaint" is the primary term used in Northern Ireland. The Department accepts the point.
  6. Secondly, I queried the provisions for appeals in regulations 21 and 62 and asked what is intended by the expression "the person specified in the notice". The Department, in its reply, indicated that the reference to "the person specified in the notice" is to an independent person nominated by the Department or, as the case may be, the Food Standards Agency. These seem to me to be rather unusual appeals provisions (although I understand that they occur also in the equivalent Regulations for England and for Scotland). Quaere whether in the future there might in certain circumstances be potential for some person aggrieved to raise a devolution issue under Schedule 10 to the Northern Ireland Act 1998 on the ground that the application of the appeals provisions was incompatible with the Convention rights (in this case Article 6 ECHR) contending that the appeal does not lie to an independent and impartial tribunal established by law [emphasis added]? The appeals provisions look rather ad hoc and the choice of where the appeal lies seems to rest entirely with one party — the party making the decision being appealed against, that is the Department. I merely observe on this point that this provision for unilateral nomination of the person to hear an appeal seems, as a matter of first impression, to be at variance with, say, the provisions for the appointment of an arbitral tribunal (which seems to be an analogous situation in some respects) in Part I of the Arbitration Act 1996.
  7. Thirdly, some of the regulation headings are repeated, namely, regulations 28 and 71 (powers of inspectors) and regulations 76 and 99 (offences and penalties) and it seems to me that this has potential to confuse. The Department argues, in the case of regulations 28 and 71, that the headings are contained in, and relate to, different Parts of the Regulations and therefore cause no confusion. But plainly it would have been better drafting to have used different headings as I am sure the Department would accept.
  8. Fourthly, many of the powers of inspectors are expressed in terms of "shall have the right to" rather than "may". The Department indicates that this is merely a matter of drafting style and cites Article 33(1) of the Food Safety (Northern Ireland) Order 1991 as an example of where the formulation "shall have the right to" is used in primary legislation. That may well be, but plainly some drafting styles are better than others: "may" is much less verbose and better drafting, and "shall" in this context seems to be more a statement in the future tense rather than in the imperative mood; whereas it is accepted among drafters that legislation generally "speaks" in the present tense. I commend another statutory rule made by the Department of Agriculture (S.R. 2002 No. 246) which uses "may" for the powers of inspectors. This is a point that all Departments might note: powers are generally better expressed in terms of a simple "may" rather than "shall have the right to".
  9. And, fifthly, there is a small drafting defect in regulation 99(3), which the Department acknowledges with regret as a word processing error: "(2)" should have been omitted "(prosecution of an offence under this regulation (2)").
  10. I draw attention to the Transmissible Spongiform Encephalopathy Regulations (Northern Ireland) 2002 (S.R. 2002 No. 225) accordingly.
  11. I draw the attention of the Assembly and the Health, Social Services and Public Safety Committee to the Food and Animal Feedingstuffs (Products of Animal Origin from China) (Emergency Control) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 226) on the ground that there is a breach of the 21-day rule (that is to say, the well-established rule of practice in rules subject to negative resolution whereby the rule-making authority should allow at least 21 days between the laying of a statutory rule and its coming into operation). The Regulations were made on 25 June 2002, were laid on the same day, and came into operation on 28 June 2002. The Food Standards Agency has explained the breach of the 21-day day rule in terms that the Regulations were needed as soon as possible in order to implement Commission Decision 2002/44/EC which came into effect on 14 June 2002. The corresponding Regulations for England ( S.I. 2002/1614) were made on 19 June 2002, were laid on before Parliament on the same day, and came into force on 20 June 2002. Against that background, I am satisfied that the breach of the 21-day rule was reasonable.
  12. Subject to the points set out in paragraphs 3 to 11, there is nothing in the statutory rules covered by this report that requires to be brought to the special attention of the Assembly and the appropriate Committees under any of the grounds mentioned in Standing Order 41.

W G Nabney
Examiner of Statutory Rules

9 September 2002

APPENDIX

(The attention of the Assembly and the appropriate Committee is drawn to
those statutory rules marked in bold )

Animal By-Products (Revocation) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 210)

Meat (Hazard Analysis and Critical Control Point) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 217)

Contaminants in Food Regulations (Northern Ireland) 2002 (S.R. 2002 No. 219)

Optical Charges and Payments (Amendment No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 221)

The Social Security (Students and Income-Related Benefits Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 222)

Insolvency (Northern Ireland) Order 1989 (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 223)

Education (Student Support) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 224)

Transmissible Spongiform Encephalopathy Regulations (Northern Ireland) 2002

(S.R. 2002 No. 225)

Food and Animal Feedingstuffs (Products of Animal Origin from China) (Emergency Control) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 226)

Ground Rents (Multiplier) Order (Northern Ireland) 2002 (S.R. 2002 No. 228)

Land Registration (Amendment) Rules (Northern Ireland) 2002 (S.R. 2002 No. 229)

Change of District Name (Lisburn Borough) Order (Northern Ireland) 2002

(S.R. 2002 No. 231)

The Jobseeker's Allowance (Joint Claims) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 236)

The Social Security (Industrial Injuries) (Prescribed Diseases) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 237)

Animal By-Products (Identification) (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 238)

The Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 239)

The Education (Student Loans) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 241)

The Social Security (Intercalating Students Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 243)

Industrial Training Levy (Construction Industry) Order (Northern Ireland) 2002

(S.R. 2002 No. 245)

The Potatoes Originating in Egypt (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 246)

The Child Support (Temporary Compensation Payment Scheme) (Modification and Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 247)

The Controlled Waste Regulations (Northern Ireland) 2002 (S.R. 2002 No. 248)

Environmental Impact Assessment (Forestry) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 249)

Pesticides (Maximum Residue Levels in Crops, Foods and Feeding Stuffs) (Amendment) (No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 250)

The Social Security (Claims and Payments) (Amendment No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 254)

Motor Vehicles (Construction and Use) (Amendment No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 256)

Seeds (Fees) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 257)

Welfare of Farmed Animals (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 259)

Contaminants in Food (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 262)

Feeding Stuffs (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 263)

Food for Particular Nutritional Uses (Addition of Substances for Specific Nutritional Purposes) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 264)

Students Awards Regulations (Northern Ireland) 2002 (S.R. 2002 No. 265)