Session 2008/2009
Seventh Report
Report of the
Examiner of Statutory Rules
to
the Assembly
and
the Appropriate Committees
10 December 2008
Committee for Agriculture and Rural Development |
S.R. 2008 Nos.451,456, 473 |
Committee for the Environment |
S.R. 2008 No. 458 |
Committee for the Office of the First Minister and deputy First Minister |
S.R. 2008 No.480 |
Committee for Regional Development |
S.R. 2008 Nos. 459,460, 469, 470 |
Committee for Social Development |
S.R. 2008 Nos. 465, 474, 478 |
NIA 70/08-09
1. In accordance with the delegations in respect of the technical scrutiny of statutory rules under Standing Order 41(4)(b) (now renumbered as Standing Order 43(4)(b)) given to the Examiner of Statutory Rules by the appropriate Committees on 11, 16, 17 and 18 May 2007, I submit my report on the statutory rules listed in the Appendix.
2. My terms of reference are essentially set out in Standing Order 43(6) (taken with the delegations under Standing Order 43(4)(b)). They are as follows:
“( 6) In scrutinising an instrument the appropriate Committee shall inter alia consider the instrument with a view to determining and reporting on whether it requires to be drawn to the special attention of the Assembly on any of the following grounds, namely, that –
(a) it imposes a charge on the public revenues or prescribes the amount of any such charge;
(b) it contains provisions requiring any payment to be made to any Northern Ireland department or public body in respect of any approval, authorisation, licence or consent or of any service provided or to be provided by that department or body or prescribes the amount of any such payment;
(c) the parent legislation excludes it from challenge in the courts;
(d) it purports to have retrospective effect where the parent legislation confers no express authority so to provide;
(e) there appears to have been unjustifiable delay in the publication of it or in the laying of it before the Assembly;
(f) there appears to be a doubt whether it is intra vires or it appears to make some unusual or unexpected use of the powers conferred by the parent legislation;
(g) it calls for elucidation;
(h) it appears to have defects in its drafting;
or on any other ground which does not impinge on its merits or the policy behind it.”.
Statutory rules to which attention is drawn in this report
THE EGGS AND CHICKS (NO. 2) REGULATIONS
(Northern IRELAND) 2008 (S.R. 2008/451)
3. I draw the attention of the Committee for Agriculture and Rural Development and the Assembly to the Eggs and Chicks (No. 2) Regulations (Northern Ireland) 2008 (S.R. 2008/451). In the Thirteenth Report for Session 2007 -2008 (11 April 2008) I expressed concerns, revolving around Article 6(1) ECHR, about the appeals procedure in regulation 17 of the previous Regulations (in S.R. 2008/98) : in contrast to the position in England and in Scotland, both of which jurisdictions provided appeals to a summary court, the “appeal” against a decision of the Department of Agriculture and Rural Development lay in effect to the Department of Agriculture and Rural Development, albeit through a procedure allowing the person aggrieved a right to make written representations to a person appointed by the Department. I recommended an amendment providing for a second-stage appeal to a court of summary jurisdiction, indicating my view that that would avoid the need to resort to the expensive route of judicial review. The Department has now simply re-enacted the appeals procedure in regulation 17 of these Regulations. Rather than rehearse this again at length I set out the extract from the Thirteenth Report, which, in my view, applies equally to these Regulations, as Appendix 2. I also set out the Department’s response to my query in referring it to what I said in the Thirteenth Report as Appendix 3. I report accordingly to the Committee for Agriculture and Rural Development and to the Assembly.
THE CHRISTMAS BONUS (RELEVANT WEEK) ORDER
(Northern IRELAND) 2008 (S.R. 2008/451)
4. I draw the attention of the Committee for Social Development and the Assembly to the Christmas Bonus (Relevant Week) Order (Northern Ireland) 2008 (S.R. 2008/474 on the ground that it was laid in breach of the 21-day rule, fully explained by the Department for Social Development. The Order was in fact made and laid in the same timescale as the corresponding Order for Great Britain (in S.I. 2008/3064): the Order for Great Britain was made and laid on 26 November 2008 and came into force on 27 November 2008; the Order for Northern Ireland was made and laid on 27 November to come into operation on 28 November 2008.
W G Nabney
Examiner of Statutory Rules
10 December 2008
APPENDIX 1
(The attention of the appropriate Committees and the Assembly is drawn to those statutory rules marked in bold )
Statutory rule requiring approval by resolution of the Assembly (confirmatory procedure)
The Social Security (Lone Parents and Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/478)
Statutory rules subject to negative resolution
The Eggs and Chicks (No.2) Regulations (Northern Ireland) 2008 (S.R. 2008/451)
The Scrapie (Fees) Regulations (Northern Ireland) 2008 (S.R. 2008/456)
The Mutual Recognition of Driving Disqualifications (Northern Ireland and Ireland) Regulations (Northern Ireland) 2008 (S.R. 2008/458)
The Drumcroon Road and Crevolea Road, Aghadowey (Abandonment) Order (Northern Ireland) 2008 (S.R. 2008/459)
The Dromore Avenue and Highlands Road, Limavady (Footway) (Abandonment) Order (Northern Ireland) 2008 (S.R. 2008/460)
The Social Security (Incapacity Benefit Work-focused Interviews) Regulations (Northern Ireland) 2008 (S.R. 2008/465)
The Old Belfast Road, Bangor (Abandonment) Order (Northern Ireland) 2008 (S.R. 2008/469)
The Old Tullygarley Road, Ballymena (Abandonment) Order (Northern Ireland) 2008 (S.R. 2008/470)
The Less Favoured Area Compensatory Allowances (No. 2) Regulations (Northern Ireland) 2008 (SR 2008/473)
The Christmas Bonus (Relevant Week) Order (Northern Ireland) 2008 (S.R. 2008/474)
The Fair Employment (Specification of Public Authorities (Amendment) Order (Northern Ireland) 2008 (S.R. 2008/480)
APPENDIX 2
Extract from the Thirteenth Report of the Examiner of Statutory Rules for Session 2007-2008 (11 April 2008)
The Eggs and Chicks Regulations (Northern Ireland) 2008 (S.R. 2008/98)
4. I draw the attention of theCommittee for Agriculture and Rural Development and the Assembly to the Eggs and Chicks Regulations (Northern Ireland) 2008 (S.R. 2008/98) on the ground that one provision concerning appeals from Departmental decisions, which the Department of Agriculture and Rural Development maintains is compatible with the Convention rights (in this case Article 6(1) ECHR), could have been framed, consistent with other statutory provisions, so as to minimise the risk of being incompatible. I make that point against the background of the corresponding Regulations for England (S.I. 2007/2245) and Scotland (S.S.I. 2008/129) and consider that it is something that should be drawn to the attention of the Committee and the Assembly.
5. Regulation 17 provides for appeals from certain decisions. It is in the following terms:
“Appeals
17. —(1) A person may, within 21 days of the notification of a decision to which this regulation applies, make written representations concerning the decision to a person appointed for this purpose by the Department.
(2) The appointed person shall consider the representations and report in writing to the Department.
(3) The Department shall give the person who made representations written notification of its final determination and the reasons for it.
(4) The procedure in this regulation applies to—
(a) a decision by the Department to refuse to register an establishment as a pedigree breeding establishment, other breeding establishment or hatchery under Article 3 of Council Regulation (EEC) No. 2782/75, or to withdraw such a registration;
(b) a decision by the Department to refuse to authorise an undertaking as a packing centre to grade eggs under Article 5(2) of Council Regulation (EC) No. 1028/2006, or to withdraw such an authorisation; and
(c) a decision by an authorised officer to seize any computer or associated equipment under regulation 12(4).
(5) The decision to withdraw a registration or authorisation referred to in paragraph (4) shall not take effect until the time limit for making representations has expired, or, if such representations are made, until the final determination by the Department in accordance with paragraph (3).”.
There is an independent element of sorts from the decision of the Department or authorised officer. But the final determination lies with the Department on the basis of the appointed person’s report and there is no provision for oral representations before the appointed person; nor is there any provision for further representations to the Department. So the procedure has its limitations. Contrast the appeal procedure for England is in the following terms:
“Appeals
18. —(1) Any person who is aggrieved by a decision specified in paragraph (2) may appeal against that decision to a magistrates’ court.
(2) A specified decision for the purpose of paragraph (1) is—
(a) a decision by the Secretary of State to refuse to register an establishment as a pedigree breeding establishment, other breeding establishment or hatchery under Article 3 of Council Regulation ( EEC ) No. 2782/75, or to withdraw such a registration;
(b) a decision by the Secretary of State to refuse to authorise an undertaking as a packing centre to grade eggs under Article 5(2) of Council Regulation (EC) No. 1028/2006, or to withdraw such an authorisation; and
(c) a decision by an authorised officer to seize any computer or associated equipment under regulation 13(4).
(3) Section 37(3), (5) and (6) of the Act [the Food Safety Act 1990] has effect in relation to an appeal under this regulation as it has effect in relation to an appeal under that section, but with the omission—
(a) in subsection (3), of the words “, or an appeal to such a court for which provision is made by regulations under Part II of this Act,”;
(b) of subsection 5(b), and the word “or” immediately preceding it; and
(c) in subsection (6)(a), of the words “or to the sheriff”.
(4) The withdrawal of an authorisation or registration referred to in paragraph (2) shall not take effect until the time for appealing against it has expired, and, if an appeal is lodged, until the appeal is finally disposed of, withdrawn or struck out for want of prosecution.
There is an appeal to a magistrates’ court. The Scottish regulations provide, similarly, for an appeal to a sheriff court. So I asked the Department why the Regulations did not include an appeal to a court of summary jurisdiction (cf Article 37 of the Food Safety (Northern Ireland) Order 1991) either at a first or second stage; whether an application for judicial review was the only remedy against the Department’s decision (final determination – administratively); and whether it was satisfied that the appeal procedure was compliant with Article 6 ECHR. The Department replied on 9 April 2008 (see Appendix 2) in terms that it had been had been considering a court-based appeal procedure similar to that in England and Scotland but that it had received representations from the Ulster Farmers’ Union, favouring an independent appeals system similar to that established by other legislation, and in light of those representations, the present appeal procedure was adopted: the Department sets out various precedents. The Department has concluded that the appeal procedure is compatible with Article 6.
6. I have to say that in this case I do not find the Department’s view fully convincing. It seems to me that the Department could (and should in order to minimise the risk of incompatibility with the Convention rights) amend the Regulations at an early opportunity to provide for a second stage appeal to a court of summary jurisdiction:I understand that a similar approach has recently been adopted in the Taxis Bill.That would take account of the perfectly understandable representations made by the Ulster Farmers’ Union, but it would at the same time provide recourse to an independent and impartial tribunal established by law without the need to resort to the expensive route of an application for judicial review. I so recommend and report accordingly.
APPENDIX 3
Letter from the Department of Agriculture and Rural Development dated 9 December 2009
THE EGGS AND CHICKS (No.2) REGULATIONS (Northern IRELAND) 2008 - SR No. 451
Thank you for your email of 8 December 2008 regarding the above Regulations.
I can confirm that, prior to making these Regulations, the Department specifically considered the issue of whether the appeals system set out in regulation 17 was compliant with Article 6, in light of your comments in your Thirteenth Report. The Department concluded that the system was compliant, for the reasons set out in our letter of 9 April 2008, in relation to the earlier Regulations (SR 2008 No. 98).
With regard to the analogy drawn with the appeal system set out in section 11 of the Taxis Act 2008, this provides for an appeal to a court of summary jurisdiction against a decision by the Department essentially relating to the suitability of an individual to operate a taxi service at all or in certain circumstances. It is considered that the substance of an appeal of this nature is more likely to give rise to purely factual issues which are likely to be of a relatively straightforward nature and as such, can be appropriately dealt with by a court of summary jurisdiction. By contrast, the Department considers that the appeals system set out in regulation 17 of both SR 2008 No. 98 and SR 2008 No. 451, whilst clearly involving factual issues, is more focused on the application by the Department of the requirements of Commission Regulations EC No. 589/2008 and No. 617/2008 to those factual issues. As such, it is considered that the appropriate forum to determine the Department's compliance with those requirements is the High Court within judicial review proceedings. In these circumstances, the High Court provides an independent and impartial tribunal established by law, as required by Article 6.
With regard to the issue of costs, these are equally recoverable by a successful party whether in the High Court or the Magistrates Court and it is not considered that potential expense is a material factor in assessing the extent to which an appeals system complies with Article 6.