Report of the
Examiner of Statutory Rules
the Appropriate Committees
30 January 2009
|Committee for Agriculture and Rural Development||S.R. 2009 Nos. 2, 10, 11|
|Committee for the Environment||S.R. 2009 Nos. 8, 14|
|Committee for Health, Social Services and Public Safety||S.R. 2009 No. 16|
|Committee for Regional Development||S.R. 2009 Nos. 6, 13, 18|
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 BEEF AND VEAL LABELLING REGULATIONS
(NORTHERN IRELAND) 2009 (S.R. 2009/2)
3. I draw the attention of the Committee for Agriculture and Rural Development and the Assembly to the Beef and Veal Labelling Regulations (Northern Ireland) 2009 (S.R. 2009/2) on the ground that they were defectively drafted in several respects, acknowledged by the Department of Agriculture and Rural Development.
The Department has indicated that it intends to bring forward amending Regulations at the earliest opportunity, which seems satisfactory: while the matters to which I draw attention are perhaps at the fringes of the Regulations, it is important that they be addressed sooner rather than later. Regulation 11(3) includes provision for an appeal from a magistrates’ court to the Crown Court: this is not suitable for Northern Ireland, where the Crown Court, unlike the Crown Court in England and Wales, does not exercise appellate jurisdiction; rather the appeal should lie to a county court, and this is already provided for in a general way in this case: see Article 143 of the Magistrates’ Courts (Northern Ireland) Order 1981, which is the relevant provision. A minor point is that references in regulation 7(3) to a justice of the peace should be to a lay magistrate: see the Justice (Northern Ireland) Act, section 10, which provision came into force on 1 April 2005; and references to a sworn information in writing should be to a sworn complaint in writing, the terminology generally used in Northern Ireland. I have made the suggestion to the Department that when it is considering the amendment of regulation 11 it might wish to consider running what is in that regulation into regulation 6, so that all the provisions relating to enforcement notices are all in one place.
RURAL DEVELOPMENT (FINANCIAL ASSISTANCE)
(PUBLIC EXPENDITURE) REGULATIONS
(Northern IRELAND) 2009 (S.R. 2009/10)
4. I draw the attention of the Committee for Agriculture and Rural Development and the Assembly to the Rural Development (Financial Assistance) (Public Expenditure) Regulations (Northern Ireland) 2009 (S.R. 2009/10) on the ground that they were purportedly made and laid as regulations subject to negative resolution, whereas there is no power to make such regulations in the first place so that they are ultra vires and of no effect whatsoever.
This has been acknowledged in effect by the Department of Agriculture and Rural Development, describing the Regulations as having been “laid in error as a statutory rule”. The Department has indicated that it intends to “withdraw” the Regulations and make an “Administrative Instrument” instead: it would seem that there is no power to expressly revoke them; nor, it would seem, can a Member put down a motion for their annulment, since, because there is no regulation-making power in the first place, it is axiomatic that the (purported) Regulations cannot be subject to any Assembly procedure.
5. It seems clear that, in order to do all of what it set out to do in the purported Regulations, apart from the arrangements for the payment of grants, the Department would require primary legislation (that is to say, provision in an Assembly Bill): the statutory power purportedly exercised was Article 4 of the Agriculture (Miscellaneous Provisions) (Northern Ireland) Order 1994, which provision contains a bare power, with the approval of the Department of Finance and Personnel, to make grants; that power would need to be considerably expanded to allow the Department to make regulations (or perhaps a scheme, made as a statutory rule by virtue of a reference to the 1994 Order being inserted in Schedule 2 to the Statutory Rules (Northern Ireland) Order 1979 by the primary legislation) in respect of various matters (including the recovery of payments and various other enforcement measures), and subject to whatever Assembly procedure; plainly, also, there would need to be express provision for the creation of offences (preferably on the face of the primary legislation itself, or at least subject to an affirmative procedure if left to subordinate legislation). The Department, it seems, intending to make parallel purely domestic Northern Ireland funding provision (as distinct from Community-derived provision), broadly followed the precedent of regulations made under section 2(2) of the European Communities Act 1972 (see S.R. 2008/380); but of course that power, for the implementation of Community provisions, is a very wide regulation-making power, allowing regulations almost akin to what can be included in primary legislation, with a few specific restrictions.
6. This serves as a basic reminder to Departments and other-rule-making bodies, and indeed for those who conduct the technical scrutiny of statutory rules, to be wary: subordinate (or delegated) legislation is of course a delegation of legislative powersfrom the legislature (by virtue of provision in a Bill passed by it and enacted as an Act) to the executive; the legislature gives (albeit, subject to any amendments made during its passage, on the basis of legislation introduced into the legislature by the executive) and the executive receives; and, accordingly, the Department or other rule-making body must operate within the powers given to it and not stray beyond. In the first instance, it lies to the legislature to scrutinise the exercise of such powers.
7. I report accordingly.
W G Nabney
Examiner of Statutory Rules
30 January 2009
(The attention of the appropriate Committees and the Assembly is drawn to those statutory rules marked in bold )
Statutory rules subject to negative resolution
The Beef and Veal Labelling Regulations (Northern Ireland) 2009 (S.R. 2009/2)
The Disabled Persons (Badges for Motor Vehicles) (Amendment) Regulations (Northern Ireland) 2009 (S.R. 2009/6)
The Conservation (Natural Habitats, etc.) (Amendment) Regulations (Northern Ireland) 2009 (S.R. 2009/8)
Rural Development (Financial Assistance) (Public Expenditure) Regulations (Northern Ireland) 2009
(S.R. 2009/10) (purportedly — see page 2)
The Local Government (Constituting a Joint Committee) Order (Northern Ireland) 2008(S.R. 2009/11)
The Old Carrick Road, Newtownabbey (Abandonment) Order (Northern Ireland) 2008(S.R. 2009/13)
The Motor Vehicles (Driving Licences) (Amendment) Regulations (Northern Ireland) 2009 (S.R. 2009/14)
General Ophthalmic Services (Amendment) Regulations (Northern Ireland) 2009 (S.R. 2009/16)
The B2 Plantation Road and C364 Clare Road, Craigavon (Abandonment) Order (Northern Ireland) 2008 (S.R. 2009/18)