Session 2008/2009
Eighth Report
Report of the
Examiner of Statutory Rules
to
the Assembly
and
the Appropriate Committees
16 January 2009
| Committee for Agriculture and Rural Development | S.R. 2008 Nos. 484, 492, 493, 496, 499, 500, 508 |
| Committee for Culture, Arts and Leisure | S.R. 2008 Nos. 475, 476 |
| Committee for the Enterprise, Trade and Investment | Draft S.R.: Energy Order (Northern Ireland) 2009 S.R. 2008 No. 507 |
| Committee for Finance and Personnel | S.R. 2009 No. 7 |
| Committee for Health, Social Services and Public Safety | S.R. 2008 No. 488 |
| Committee for Regional Development | S.R. 2008 No. 501 |
| Committee for Social Development | S.R. 2008 Nos. 485, 490, 497, 498, 502, 503, 504, 506 |
NIA 75/08-09
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 PLANT HEALTH (AMENDMENT NO. 3) ORDER (NORTHERN IRELAND) 2008 (S.R. 2008/493)
3. I draw the attention of the Committee for Agriculture and Rural Development and the Assembly the Plant Health (Amendment No. 3) Order (Northern Ireland) 2008(S.R. 2008/493) (S.R. 2008/493) on the ground that it was laid in breach of the 21-day rule (that is to say, the well-established rule of practice whereby a Department or other rule-making body should, in the case of a statutory rule that is subject to negative resolution, allow at least 21 days between the laying of the statutory rule and its coming into operation). The Order was made and laid on 11 December 2008; and it came into operation on 12 December 2008. The Department of Agriculture and Rural Development has explained that the relevant importation season for the plants in question began in October and that it was necessary to bring the Order into operation as soon as possible to comply with Commission Decision 2008/840/EC. The Department’s explanation seems reasonable, and I am aware that the Department had made an earlier Plant Health Order in November 2008, which Order came into operation on 4 December 2008.
THE SOCIAL SECURITY (HOUSING COSTS SPECIAL ARRANGEMENTS) (AMENDMENT AND MODIFICATION) REGULATIONS
(NORTHERN IRELAND) 2008 (S.R. 2008/503)
4. I draw the attention of the Committee for Social Development and the Assembly to the Social Security (Housing Costs Special Arrangements) (Amendment and Modification) Regulations (Northern Ireland) 2008 (S.R. 2008/503) on the ground that they were laid in breach of the 21-day rule. The Regulations were made on 18 December 2008, were laid on 19 December 2008 and came into operation (in part at least) on 5 January 2009. The Department for Social Development has explained that the policy and Regulations for Great Britain were only finalised on 15 December 2008 and that additional time was needed for further scrutiny and finalising the Regulations for Northern Ireland. In the circumstances, the Department’s explanation seems to be reasonable.
The Transmissible Spongiform EncEPhalopathies REGULATIONS (Northern Ireland) 2008 (S.R. 2008/508)
5. I draw the attention of the Committee for Agriculture and Rural Development and the Assembly to the Transmissible Spongiform Encephalopathies Regulations (Northern Ireland) 2008 (S.R. 2008/508) on the ground that they were laid in breach of the 21-day rule. The Regulations were made on 22 December 2008, were laid on 23 December 2008 and came into operation on 1 January 2009. The Department of Agriculture and Rural Development has explained the breach in terms which seem to be reasonable. It seems from this that the timing was largely dictated by the effective date (1 January 2009) of Commission Decision 2008/908/EC (which authorises certain member States, including the United Kingdom and Ireland, to revise their annual BSE monitoring programmes). There was a joint consultation carried out by the Department and the Food Standards Agency Northern Ireland on the Commission Decision between 31 October 2008 and 3 December 2008. A decision from the Food Standards Agency was obtained on 10 December 2008 with a final decision by Heath Ministers on 18 December 2008. To have delayed the implementation date (which involved a change in the BSE cattle testing age from 30 to 48 months) would have placed the local farming and beef-producing industry at a disadvantage as compared with those in Great Britain and 14 other member States, with added cost to the public purse. The Department informed the Committee of the position on 9 December 2008.
W G Nabney
Examiner of Statutory Rules
16 January 2009
APPENDIX
(The attention of the appropriate Committees and the Assembly is drawn to those statutory rules marked in bold)
Draft statutory rule requiring approval by resolution of the Assembly
Draft SR: Energy (Amendment) Order (Northern Ireland) 2009
Statutory rule subject to affirmative resolution
The Rates (Social Sector Value) (Amendment) Regulations (Northern Ireland) 2009 (S.R. 2009/7)
Statutory rule requiring approval by resolution of the Assembly (confirmatory procedure)
The Christmas Bonus (Specified Sum) Order (Northern Ireland) 2008(S.R. 2008/502)
Statutory rules subject to negative resolution
Fisheries (Amendment No. 2) Byelaws (Northern Ireland) 2008(S.R. 2008/475)
Eel Fishing (Licensing Duties) Regulations (Northern Ireland) 2008(S.R. 2008/476)
The Sea Fishing (Marking and Identification of Passive Fishing Gear and Beam Trawls) Regulations (Northern Ireland) 2008(S.R. 2008/484)
The Occupational Pensions (Revaluation) Order (Northern Ireland) 2008(S.R. 2008/485)
The Charges for Drugs and Appliances (Amendment) Regulations (Northern Ireland) 2008(S.R. 2008/488)
The Social Security (Miscellaneous Amendments No. 6) Regulations (Northern Ireland) 2008 (S.R. 2008/490)
The Sea Fishing (Enforcement of Community Measures) Order (Northern Ireland) 2008(S.R. 2008/492)
The Plant Health (Amendment No. 3) Order (Northern Ireland) 2008(S.R. 2008/493)
The Seed Potatoes (Levy) (Revocation) Order (Northern Ireland) 2008(S.R. 2008/496)
The Social Security (Child Benefit Disregard) Regulations (Northern Ireland) 2008 (S.R. 2008/497)
The Social Security (Miscellaneous Amendments No. 7) Regulations (Northern Ireland) 2008 (S.R. 2008/498)
The Plant Protection Products (Amendment No. 2) Regulations (Northern Ireland) 2008(S.R. 2008/499)
The European Fisheries Fund (Grants) (Amendment) Regulations (Northern Ireland) 2008(S.R. 2008/500)
The Disabled Persons (Badges for Disabled Persons) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/501)
The Social Security (Housing Costs Special Arrangements) (Amendment and Modification) Regulations (Northern Ireland) 2008 (S.R. 2008/503)
The Housing Benefit (Amendment No. 2) Regulations (Northern Ireland) 2008 (S.R. 2008/504)
The Housing Benefit (Executive Determinations) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/506)
Electricity (Guarantees of Origin of Electricity Produced from Renewable Energy Sources) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/507)