Report of the
Examiner of Statutory Rules
to
the Assembly
and
the Appropriate Committees
15 June 2007
| Committee for Education | S.R. No. 288 |
| Committee for Enterprise, Trade and Investment | S.R. No. 289 |
1. In accordance with the delegations in respect of the technical scrutiny of statutory rules under Standing Order 41(4)(b) given to the Examiner of Statutory Rules by the appropriate Committees 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 41(6) (taken with the delegations under Standing Order 41(4)(b)) 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 rule to which I draw attention in this report
The Electricity (Applications for Licences and
Extensions of Licences) (No. 2) Regulations
(Northern Ireland) 2007 (S.R. 2007/289)
3. I draw the attention of the Committee for Enterprise, Trade and Investment and the Assembly to the Electricity (Applications for Licences and Extensions of Licences) (No. 2) Regulations ( Northern Ireland) 2007 (S.R. 2007/289) on the grounds that they were laid in breach of the 21-day rule and laid after they came into operation. The 21-day rule is the established rule of practice whereby the Department should, in the case of a statutory rule that is subject to negative resolution, allow at least 21 days between its laying and the date on which it comes into operation.
4. The Department of Enterprise, Trade and Investment has provided an explanation for the timing of the Regulations. It was necessary to bring the Regulations into operation on 24 May 2007 (the date on which the Regulations were laid, having been made the day before) to enable applications for transmission licences and Single Electricity Market (SEM) operator licences to be made to facilitate the grant of licences, taking account of the 28-day statutory consultation period, by the “go active” date for the single electricity market (3 July 2007). By way of further background, these Regulations revoke and replace in similar terms earlier Regulations (S.R. 2007/285) made on 4 May 2007: those Regulations were, it seems, (purportedly) made before certain relevant empowering provisions came into operation (5 May 2007): see also S.R. 2007/283 and S.R. 2007/284, the relevant commencement orders.
5. In this, my first report since the restoration of the Assembly and Executive on 8 May 2007, I consider that it is appropriate and timely, after prolonged suspension and “Direct Rule”, to draw attention to the significance of the 21-day rule, allowing the Assembly and Committees time for scrutiny. At the same time I take the opportunity to remind Departments of this and of the need to provide a clear explanation where there is a breach of it. It is of course within my remit to comment to the appropriate Committee and to the Assembly on the explanation provided. I also remind Departments that on occasions where there is a breach of the 21-day rule every effort should be made to lay the statutory rule at the earliest possible opportunity. Only in the most exceptional circumstances should a statutory rule that is subject to negative resolution be laid after it has come into operation and, where it is so laid, an explanation of the circumstances giving rise to that should be given. In this case I report to the Committee and to the Assembly my view that the Department was faced with difficult circumstances in rectifying an error that had occurred just prior to restoration on 8 May 2007 ─ with a particularly tight timetable in which to do so. But clearly that should not be used as a good precedent for future cases.
6. I report accordingly to the Committee for Enterprise, Trade and Investment and to the Assembly .
W G Nabney
Examiner of Statutory Rules
15 June 2007
APPENDIX 1
(The attention of the appropriate Committees and the Assembly is drawn to
those statutory rules marked in bold )
Statutory rules subject to negative resolution
Education (Prohibition from Teaching or Working with Children) Regulations ( Northern Ireland) Regulations 2007 (S.R. 2007/288)
The Electricity (Applications for Licences and Extensions of Licences) (No. 2) Regulations ( Northern Ireland) 2007 (S.R. 2007/289)
APPENDIX 2
STATUTORY RULES MADE AND LAID BETWEEN DISSOLTION ON 30 JANUARY 2007 AND RESTORATION ON 8 MAY 2007
Statutory Rules delivered to the Assembly Business Office between the dissolution of the Assembly (while still suspended) on 30 January 2007 and the election on 7 March 2007 (while still suspended)
The Welfare of Animals (Transport) (Amendment) Regulations ( Northern Ireland) 2007 (S.R.2007/32)
The Dairy Produce Quotas (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/33)
The Prescribed Dwelling-house Regulations ( Northern Ireland) 2007 (S.R. 2007/38)
The Prescribed Fees and Charges Regulations ( Northern Ireland) 2007 (S.R. 2007/39)
The Rent Book (Savings) Order ( Northern Ireland) 2007 (S.R. 2007/40)
The Private Crossings (Signs and Barriers) Regulations ( Northern Ireland) 2007 (S.R. 2007/41)
The Railway Safety Regulations ( Northern Ireland) 2007 (S.R. 2007/47)
The Railway Safety Regulations (Miscellaneous Provisions) ( Northern Ireland) 2007 (S.R. 2007/48) The Moylena Road, Antrim (Abandonment) Order ( Northern Ireland) 2007 (S.R. 2007/49)
The Derrywarragh Bridge and Route 1050 (Abandonment) Order ( Northern Ireland) 2007 (S.R. 2007/50)
The Flexibility Working (Eligibility, Complaints and Remedies) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/53)
Agriculture (Student Fees) Regulations ( Northern Ireland) 2007 (S.R. 2007/54)
The Notification of Marketing of Food for Particular Nutritional Uses Regulations ( Northern Ireland) 2007 (S.R. 2007/60)
The Rates Regulations ( Northern Ireland) 2007 (S.R. 2007/61)
The Occupational and Personal Pension Schemes (Prescribed Bodies) Regulations ( Northern Ireland) 2007 (S.R. 2007/64)
The Quick Frozen Foodstuffs Regulations ( Northern Ireland) 2007 (S.R. 2007/65)
The Contaminants in Food Regulations ( Northern Ireland) 2007 (S.R. 2007/66)
The Social Security Investigation Powers (Arrangements with Great Britain) Regulations ( Northern Ireland) 2007 (S.R. 2007/67)
The Avian Influenza and Influenza of Avian Origin in Mammals Regulations ( Northern Ireland) 2007 (S.R. 2007/68)
The Avian Influenza (Vaccination) Regulations ( Northern Ireland) 2007 (S.R. 2007/69)
The Avian Influenza (Preventive Measures) Regulations ( Northern Ireland) 2007 (S.R. 2007/70)
The Six Road Ends, Bangor (Stopping-Up) Order ( Northern Ireland) 2007 (S.R. 2007/74)
The Tenancy Terms Regulations ( Northern Ireland) 2007 (S.R. 2007/87)
The Rent Assessment Committees Regulations ( Northern Ireland) 2007 (S.R. 2007/88)
The Rent Book Regulations ( Northern Ireland) 2007 (S.R. 2007/89)
The Rates (Transitional Relief) Order ( Northern Ireland) 2007 (S.R. 2007/90)
The Local Government (Early Termination of Employment) (Discretionary Compensation) Regulations ( Northern Ireland) 2007 (S.R. 2007/93)
The Smoke-free (Premises, Vehicle Operators and Penalty Notices) Regulations ( Northern Ireland) 2007 (S.R. 2007/94)
The Fair Employment Tribunal (Remedies) (Amendment) Order ( Northern Ireland) 2007 (S.R.2007/100)
The Industrial Tribunals (Interest on Awards in Sexual Orientation Discrimination Cases) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/101)
The Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/102)
The Race Relations (Interest on Awards) (Amendment) Order ( Northern Ireland) 2007 (S.R. 2007/103)
The Planning (General Development) (Amendment) Order ( Northern Ireland) 2007 (S.R. 2007/106)
Milk (Cessation of Production) (Revocation) Scheme ( Northern Ireland) 2007 (S.R. 2007/107)
The Meat (Official Controls Charges) Regulations ( Northern Ireland) 2007 (S.R. 2007/108)
The Quick Frozen Foodstuffs (No. 2) Regulations ( Northern Ireland) 2007 (S.R. 2007/110)
The Social Security (Preparation for Employment Programme 50 to 59 Pilot) Regulations ( Northern Ireland) 2007 (S.R. 2007/113)
The Tummery Road, Dromore County Tyrone (Abandonment) Order ( Northern Ireland) 2007 (S.R. 2007/117)
The Housing Benefit (Daily Liability Entitlement) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/121)
The Teachers’ Pensions etc. (Reform Amendments) Regulations ( Northern Ireland) 2007
(S.R. 2007/137)
Statutory Rules laid before Assembly between 8 March 2007 and 4 May 2007 (while still suspended)
The Public Service Vehicles (Licence Fees) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/97)
The Motor Vehicles (Driving Licences) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/111)
The Food Supplements (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/116)
The Non-Domestic Rating (Unoccupied Hereditaments) Regulations (S.R. 2007/119)
The Rates (Exclusion from Service of Completion Notices) Regulations (S.R. 2007/120)
The Water Abstanction and Impoundment (Licensing) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/122)
The Colours in Food (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/123)
Measuring Instruments (EEC Requirements) (Verification Fees) Regulations ( Northern Ireland) 2007 (S.R. 2007/124)
Weights and Measures (Passing as Fit for Use in Trade and Adjustment Fees) Regulations ( Northern Ireland) 2007 (S.R. 2007/125)
The Social Security (Claims and Payments) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/128)
The Social Security (Incapacity Benefit Work-Focused Interviews) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/129)
The Private Tenancies (Forms etc.) Regulations ( Northern Ireland) 2007 (S.R. 2007/131)
The Oficial Controls (Animals, Feed and Food) Regulations ( Northern Ireland) 2007 (S.R. 2007/133)
The Smoke-Free (Signs) Regulations ( Northern Ireland) 2007 (S.R. 2007/134)
The Work at Height (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/135)
The Curd Cheese (Restriction on Placing on the Market) (Revocation) Regulations ( Northern Ireland) 2007 (S.R. 2007/136)
The Guaranteed Minimum Pensions Increase Order ( Northern Ireland) 2007 (S.R. 2007/139)
The Charges for Drugs and Appliances (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/140)
The Optical Charges and Payments (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/141)
The Recovery of Health Services Charges (Consequential Provisions) Order ( Northern Ireland) 2007 (S.R. 2007/142)
The Firefighters’ Compensation Scheme Order ( Northern Ireland) 2007 (S.R. 2007/143)
The Firefighters’ Pension Scheme Order ( Northern Ireland) 2007 (S.R. 2007/144)
The Water Supply (Water Quality) Regulations ( Northern Ireland) 2007 (S.R. 2007/147)
The Rate Relief (Education, Training and Leaving Care) Regulations ( Northern Ireland) 2007 (S.R. 2007/148)
The Rates (Payment of Interest) Regulations ( Northern Ireland) 2007 (S.R. 2007/149)
The Rates (Appeals) Regulations ( Northern Ireland) 2007 (S.R. 2007/150)
The Water and Sewerage Charges Scheme Regulations ( Northern Ireland) 2007 (S.R. 2007/151)
Local Government Pension Scheme (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/152)
The Social Security Benefits Up-Rating Order ( Northern Ireland) 2007 (S.R. 2007/153)
The Social Security (Miscellaneous Amendments) Regulations ( Northern Ireland) 2007
(S.R. 2007/154)
The Social Security Benefits Up-Rating Regulations ( Northern Ireland) 2007 (S.R. 2007/155)
The Social Security (Industrial Injuries) (Dependency) (Permitted Earnings Limit) Regulations ( Northern Ireland) 2007 (S.R. 2007/156)
The Pension Protection Fund (Waiver of Pension Levy and Consequential Amendments) Regulations ( Northern Ireland) 2007 (S.R. 2007/157)
The Health and Personal Social Services (Assessment of Resources) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/161)
The Social Security Revaluation of Earnings Factors Order ( Northern Ireland) 2007 (S.R. 2007/163)
The Social Security (Low Earnings Threshold) Order ( Northern Ireland) 2007 (S.R. 2007/164)
The Offshore Safety (Miscellaneous Amendments) Regulations ( Northern Ireland) 2007 (S.R. 2007/165)
The Social Security (Industrial Injuries) (Prescribed Diseases) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/167)
The Local Government (Payments to Councillors) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/168)
Pensions Increase (Review) Order ( Northern Ireland) 2007 (S.R. 2007/170)
The Workmen’s Compensstion (Supplementation) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/172)
The Pension Protection Fund (Liability to pay a Contributions Equivalent Premium) Regulations ( Northern Ireland) 2007 (S.R. 2007/181)
The Fairview Lane, Unclassified No. 6514, Enniskillen (Abandonment) Order ( Northern Ireland) 2007 (S.R. 2007/183)
The Occupational and Personal Pension Schemes (Miscellaneous Amendments) Regulations ( Northern Ireland) 2007 (S.R. 2007/185)
The Pension Protection Fund (Closed Schemes) Regulations ( Northern Ireland) 2007 (S.R. 2007/186)
The Urban Waste Water Treatment Regulations ( Northern Ireland) 2007 (S.R. 2007/187)
The Healthy Start Scheme and Day Care Food Scheme (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/188)
The Biocidal Products (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/190)
The Rates (Transitional Provisions) Order ( Northern Ireland) 2007 (S.R. 2007/191)
The Rates (Consequential Provisions) Order ( Northern Ireland) 2007 (S.R. 2007/192)
The Pension Protection Fund (Miscellaneous Amendments) Regulations ( Northern Ireland) 2007 (S.R. 2007/193)
The Education (Student Support) Regulations ( Northern Ireland) 2007 (S.R. 2007/195)
The Social Security and Child Support (Miscellaneous Amendments) Regulations ( Northern Ireland) 2007 (S.R. 2007/196)
The Producer Responsibility Obligations (Packaging Waste) Regulations ( Northern Ireland) 2007 (S.R. 2007/198)
The Products of Animal Origin (Third Country Imports) Regulations ( Northern Ireland) 2007 (S.R. 2007/199)
The Rate Relief (Qualifying Age) Regulations ( Northern Ireland) 2007 (S.R. 2007/203)
The Rate Relief (General) Regulations ( Northern Ireland) 2007 (S.R. 2007/204)
The Water Industry (Determination of Turnover for Penalties) Order ( Northern Ireland) 2007 (S.R. 2007/205)
The Social Security (Claims and Payments) (Amendment No. 2) Regulations ( Northern Ireland) 2007 (S.R. 2007/206)
The Avian Influenza (H5N1 in Poultry) Regulations ( Northern Ireland) 2007 (S.R. 2007/207)
The Avian Influenza (H5N1 in Wild Birds) Regulations ( Northern Ireland) 2007 (S.R. 2007/208)
The Poultry Breeding Flocks and Hatcheries Scheme Order ( Northern Ireland) ( Northern Ireland) 2007 (S.R. 2007/209)
The Occupational Pension Schemes (Levies) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/210)
The Pension Protection Fund (Pension Compensation Cap) Order ( Northern Ireland) 2007
(S.R. 2007/211)
The Occupational Pension Schemes (Levy Ceiling) Order ( Northern Ireland) 2007 (S.R. 2007/212)
The Seymour Street and Queen’s Road, Lisburn (Abandonment) Order ( Northern Ireland) 2007 (S.R. 2007/213)
The New Firefighters’ Pension Scheme Order ( Northern Ireland) 2007 (S.R. 2007/215)
The Anne Street, Portaferry (Footway) (Abandonment) Order ( Northern Ireland) 2007 (S.R. 2007/217)
The Creagh Road, Castledawson (Abandonment) Order ( Northern Ireland) 2007 (S.R. 2007/218)
The Social Security (Work-Focused Interviews for Lone Parents) Regulations ( Northern Ireland) 2007 (S.R. 2007/219)
The Adult Placement Agencies Regulations ( Northern Ireland) 2007 (S.R. 2007/221)
The Regulation and Improvement Authority (Registration) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/222)
The Regulation and Improvement Authority (Fees and Frequency of Inspection) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/223)
The Animals and Animal Products (Import and Export) (Amendment No. 2) Regulations ( Northern Ireland) 2007 (S.R. 2007/224)
The Employment Equality (Age) (Consequential Amendments) Regulations ( Northern Ireland) 2007 (S.R. 2007/225)
The Little Corporation Street, Belfast (Abandonment) Order ( Northern Ireland) 2007 (S.R. 2007/229) The Day Care Settings Regulations ( Northern Ireland) 2007 (S.R. 2007/234)
The Domiciliary Care Agencies Regulations ( Northern Ireland) 2007 (S.R. 2007/235)
The Residential Family Centre Regulations ( Northern Ireland) 2007 (S.R. 2007/236)
The Motor Vehicles (Construction and Use) (Amendment No. 2) Regulations ( Northern Ireland) 2007 (S.R. 2007/238)
The Motor Vehicles (Type Approval) Regulations ( Northern Ireland) 2007 (S.R. 2007/240)
The Road Vehicles Lighting (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/239)
The Motorways Traffic (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/242)
The Pollution Prevention and Control (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/245)
The Offshore Installations (Safety Case) Regulations ( Northern Ireland) 2007 (S.R. 2007/247)
The Disability Discrimination (Taxis) (Carrying of Guide Dogs etc.) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/248)
Plant Protection Products (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/251)
The Plant Health (Import Inspection Fees) (Amendment No. 2) Regulations ( Northern Ireland) 2007 (S.R. 2007/252)
The Landfill (Amendment No. 2) Regulations ( Northern Ireland) 2007 (S.R. 2007/258)
The Whole in Government Accounts Order ( Northern Ireland) 2007 (S.R. 2007/260)
The Jobseeker’s Allowance (Extension of the Preparation for Employment Programme) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/262)
The Social Security and Housing Benefit (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/263)
Travelling Expenses and Remission of Charges (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/264)
The Air Quality Standards Regulations ( Northern Ireland) 2007 (S.R. 2007/265)
The Housing Benefit (Miscellaneous Amendments) Regulations ( Northern Ireland) 2007 (S.R. 2007/266)
Trunk Road T6 ( Henry Street, Enniskillen) Order ( Northern Ireland) 2007 (S.R. 2007/267)
The Pig Carcase (Grading) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/271)
Phosphorus (Use in Agriculture) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/273) Foyle Area and Carlingford Area(Angling) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/274)
Foyle Area and Carlingford Area (Control of Drift and Draft Net Fishing) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/275)
Foyle Area and Carlingford Area (Control of Netting) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/276)
Foyle Area and Carlingford Area (Licensing of Fishing Engines) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/277)
Foyle Area and Carlingford Area (Tagging and Logbook) (Amendment) Regulations ( Northern Ireland) 2007 (S.R. 2007/278)
The Transport of Animals and Poultry (Cleansing and Disinfection) Order ( Northern Ireland) 2007 (S.R. 2007/279)
Water and Sewerage Charges Scheme (No. 2) Regulations ( Northern Ireland) 2007 ( S.R. 2007/280)
Pollution of Water: Offences (Determination of Liability) Regulations ( Northern Ireland) 2007 ( S.R. 2007/281)
Electricity (Applications for Licences and Extensions of Licences) Regulations ( Northern Ireland) 2007 (S.R. 2007/285)
The Transfer of State Pensions and Benefits Regulations ( Northern Ireland) 2007 ( S.R. 2007/286)
Statutory Rules laid before Assembly on or after 8 May 2007 but made while the Assembly was still suspended
The Sulphur Content of Liquid Fuels Regulations ( Northern Ireland) 2007 (S.R. 2007/272).