Session 2007/2008
First Report
Report of the
Examiner
of Statutory Rules
to
the Assembly
and
the Appropriate Committees
7 September 2007
Committee for Agriculture and Rural Development |
S.R. 2007 Nos. 314, 327, 333
|
Committee for Education |
S.R. 2007 No. 309 |
Committee for Employment and Learning |
S.R. 2007 Nos. 326, 328, 329, 336, 340, 342, 343 |
Committee for Enterprise, Trade and Investment |
S.R. 2007 Nos. 321, 322, 344 |
Committee for the Environment |
S.R. 2007 No. 308, 317, 318, 319, 323, 345 |
Committee for Health, Social Services and Public Safety |
S.R. 2007 Nos. 307, 325, 339, 349, 352
|
Committee for Regional Development |
S.R. 2007 Nos. 311, 312, 313, 315, 316, 346, 350, 351 |
Committee for Social Development |
S.R. 2007 Nos. 330, 332, 337, 338, 341, 347 |
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 rules to which attention is drawn in this report
The Bovine Products (Restrictions on Placing on the Market)
(No. 2) (Amendment) Regulations
(Northern Ireland) 2007 (S.R. 2007/307)
3. I draw attention to the Bovine Products (Restrictions on Placing on the Market) (No. 2) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/307) on the ground that they were laid in breach of the 21-day rule and laid after they came into operation : the 21-day rule is the well-established rule of practice whereby a Department should, in the case of a statutory rule subject to negative resolution, allow at least 21 days between the making of the statutory rule and its coming into operation.But I am satisfied that the explanation offered by the Food Standards Agency is reasonable in the circumstances of the Regulations. The relevant Commission Decision (Decision 2007/411/EC) was published on 14 July 2007 and the United Kingdom had an obligation to bring the necessary legislation into force once the Decision had been notified. Corresponding provision for England (contained in S.I. 2007/1755) was made on 19 June 2007, laid before Parliament on 20 June 2007 and came into force on 21 June 2007 (Thursday). These Regulations were made on 20 June 2007 to come into operation on 21 June 2007. They were laid before the Assembly on 25 June 2007, the following Monday. As I indicate elsewhere in this report, I would stress to the Food Standards Agency (and to Departments generally) that in cases such as this they should strive to lay statutory rules before they come into operation: see paragraph 25.
THe Education (Core Syllabus for Religious Education) Order
(Northern Ireland) 2007 (S.R. 2007/309)
4. I draw the attention of Committee for Education and the Assembly to the Education (Core Syllabus for Religious Education) Order (Northern Ireland) 2007 (S.R. 2007/309) on the ground that it seems to be an unusually narrow exercise of the statutory power and raises doubts as to its vires under section 24 of the Northern Ireland Act 1998 and a possible devolution issue under Schedule 10 to that Act.
5. The Order, in essence, incorporates by reference under Article 11 of the Education (Northern Ireland) 2006 (re-enacting an earlier statutory provision) a document entitled “Core Syllabus for Religious Education”, published by the Stationery Office and available on the Department of Education’s website.
6. That document was drawn up by a drafting group representing the leaders of the “Four Churches”, namely, the Roman Catholic Church, the Church of Ireland, the Presbyterian Church in Ireland and the Methodist Church.
7. It seems fair to say that the syllabus, while non-denominational (in what might be described as wider Christian terms), is exclusively or predominantly Christian until Key Stage 3 (11 to 14). The Department of Education’s paper “Results of an Equality Impact Assessment” (November 2006), analysing responses to the Department’s Equality Impact Assessment (March 2006 — which seems to have been the mechanism for consultation on the Churches’ proposals) ─ is perhaps instructive:
“Potential impacts of the Proposals
5.3 The Churches, Education and Library Board RE Advisers, CCMS, some involved in teacher training, the Caleb Foundation and most schools, teachers and parents responding welcomed the Proposals and believed they could be beneficial and help to promote good relations.
5.4 The Inter-Faith Forum, the Baha’i Council, NICIE, equality/human rights groups, some schools, a minority of parents and some involved in teacher training thought the proposals could have adverse impacts on the grounds of Age, Religion and Race and do not go far enough in terms of the provision made for religions other than Christianity. They also suggested that the proposals could be in breach of Section 75 [of the Northern Ireland Act 1998], the Human Rights Act [1998], the UN Convention on the Rights of the Child, the UNESCO Convention on Discrimination in Education and the Race Relations (Northern Ireland) Order 1997.”.
8. The Department was clearly aware of concerns about the proposals and suggested various measures that would “mitigate any potential adverse impacts”. Ultimately it pointed to the right of parents to withdraw their child from all or part of religious education lessons. See paragraph 6.3 of the Department’s paper, which is available on its website.
9. It is not my function to consider the policy or merits of the Department, and I am certainly not in any way qualified to pronounce on theology. Nor is it my function to declare that the Order is incompatible with the Convention rights (say, Article 9 on freedom of religion belief and Article 2 of the First Protocol on the right to education) or that it discriminates against a person or class of person on the ground of religious belief or political opinion: that is ultimately a matter for the courts. But I can express doubts. The Department has told me that it was “very mindful of the ECHR” in specifying the syllabus, but from what I can see, it seems that the Department did not refer the syllabus back to the drafting group to consider further revision in light of the representations. I can and do take notice of the fact that Northern Ireland, while predominantly Christian according to the tenets of one denomination or another, is becoming a multi-cultural society, and plainly the Department must take that into account when exercising its statutory powers: that is clearly underpinned by provisions such as sections 24 and 75 of the Northern Ireland Act 1998. Article 11(2)(a) of the Education (Northern Ireland) Order 2006 requires that the draft syllabus be prepared by “a group of persons … appearing to the Department to be persons having an interest in the teaching of religious education in grant-aided schools” — in effect almost all schools in Northern Ireland. The Department avowedly interpreted that as meaning the Roman Catholic Church and the transferors from what may be described as the former Protestant schools. With respect, that seems to be an unusually narrow view, even in 2002, where the syllabus, incorporated by reference in the Order, has its origins.
10. Accordingly, I draw the attention of the Order to the Committee for Education and the Assembly on the ground that it appears to be an unusually narrow exercise of a statutory power and one which may be of doubtful vires under section 24 of the Northern Ireland Act 1998, thereby giving rise to a possible devolution issue under Schedule 10 to that Act.
The harbour works (Environmental Impact Assessment)
(Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/312)
11. I draw the attention of the Committee for Regional Development and the Assembly to the Harbour Works (Environmental Impact Assessment) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/312) on the ground that they are defectively drafted in two (related) minor respects, acknowledged by the Department for Regional Development .
12. First, I queried the defined expression “by local advertisement” (regulation 3(c)/regulation 2(1) of the principal Regulations: it looked a bit awkward and did not appear to add anything to “local advertisement” and suggested that “local advertisement” (without the preposition “by”) would have fitted the amendments in regulations 7 and 8 perfectly. The Department responded by indicating that the expression followed the wording of the Public Participation Directive (which was being transposed in part by the Regulations) but accepted that “by” did not appear to add anything.
13. Second, I suggested that in regulation 4(b)/inserted regulation 7(6) of the principal Regulations “a local advertisement” would have been more internally consistent than “the publication of an advertisement”.
14. These are points that do not affect the working of the Regulations, but I suggested to the Department that they could be tidied when a suitable opportunity next arises and the Department has so acknowledged. I report accordingly.
The Products of Animal Origin (Third Country Imports)
(Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/314)
15. I draw the attention of the Committee for Agriculture and Rural Development and the Assembly to the Products of Animal Origin (Third Country Imports) (Amendment) Regulations (Northern Ireland) 2007 (S.R.2007/314) on the ground that they are defectively drafted in one minor respect, acknowledged by the Department of Agriculture and Rural Development . I am grateful to the Subordinate Legislation Committee of the Scottish Parliament (1st Report of 2007 (Session 3) dated 27 June 2007) for identifying the point in relation to the corresponding Regulations for Scotland (contained in S.S.I 2007/304). There is, it seems, an error in the definition of “product” in regulation 3(3)/substituted definition in regulation 2 of the principal Regulations: “quality” should have read “quantity”; and I note that the definition is a direct transposition of the corresponding wording in Commission Decision 2007/275/EC, Article 6.1(a)(iv).
16. The Department intends to correct the error at the earliest opportunity.
The Electricity Regulations (Northern Ireland) 2007
(S.R. 2007/321)
17. I draw the attention of the Committee for Enterprise, Trade and Investment and the Assembly to the Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321) on the grounds they were laid in breach of the 21-day rule (some of the provisions coming into operation on the same day as they were made), that they do not take account of established drafting practice in one respect and that they are defectively drafted in one respect, acknowledged by the Department of Enterprise, Trade and Investment .
18. The Department has explained the breach of the 21-day rule in terms that it “only became aware during the drafting process that some of the Regulations would be required by the 3 July SEM go-active date rather, than the 1 November go-live date. Those Regulations needed to be in place by the SEM go-active date of 3 July 2007 in order to be able to place a legal obligation on market participants to prepare for the SEM-go-live date of 1 November. Unfortunately therefore it was not possible to comply with the 21-day rule due to time constraints.” When I asked when it became apparent that some of the Regulations would need to be in operation for the 3 July 2007 go-active date I was informed that this was around mid-January. In mitigation it pointed to factors such as the preparation of the “SEM Order and associated issues” and the complexity and length of the Regulations which was not realised until the process began. While not perhaps a complete answer, I can appreciate that the Department was under considerable pressure in preparing the Regulations and they are long and complex. Part II (amendments to the Electricity (Northern Ireland) Order 1992) is broadly similar to amendments to the Electricity Act 1989 ( Great Britain) contained in the Utilities Act 2000, I observe. Part III contains complex free-standing provisions and Part IV contains fairly involved transitional provisions.
19. Some of the provisions are expressed to come into operation “forthwith” (that is to say, 3 July 2007); others come into operation on 1 November 2007. See regulation 1. The usual legislative practice would have been to have included in italics (before the recital of powers/preamble) “Coming into operation in accordance with Regulation 1”. The Department acknowledges this point and indicates that it was done in haste.
20. In paragraph 11 of substituted 6 to the Electricity Order the Department acknowledges that it should have referred to a lay magistrate rather than a justice of the peace. In the Electricity Order, as it stood before the amendments made by the Regulations, the function of the justice of the peace there set out was transferred, with effect from 1 April 2005, to a lay magistrate by section 10 of and Schedule 4 to the Justice (Northern Ireland) Act 2002. I have drawn attention to this matter in earlier reports made during the suspension of the Assembly: see the Fifth and Sixth Reports of the Examiner of Statutory Rules during the suspension of the Assembly. Accordingly I draw attention to this provision as being defectively drafted.
21. I report accordingly.
The Electricity (Class Exemptions from the Requirement for a Licence) Order
(Northern Ireland) 2007 (S.R. 2007/322)
22. I draw the attention of the Committee for Enterprise, Trade and Investment and the Assembly to the Electricity (Class Exemptions from the Requirement for a Licence) Order (Northern Ireland) 2007 (S.R. 2007/322) on the ground that they were laid in breach of the 21-day rule (and after they came into operation since the making and commencement dates were the same) . It seems that these Regulations, like the Electricity Regulations (Northern Ireland) 2007, reported at paragraphs 17 to 21, had to be in operation by the SEM go-active date of 3 July 2007.
The Education (Student Loans) (Amendment)
Regulations (Northern Ireland) 2007 (S.R. 2007/329)
23. I draw the attention the Committee for Learning and Employment and the Assembly to the Education (Student Loans) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/329) on the ground that they were laid in breach of the 21-day rule. The Regulations were made on 10 July 2007, laid on 20 July 2007 and came into operation on 1 August 2007. The Department for Learning and Employment has explained that the Regulations must come into operation on 1 August for each academic year to enable systems to be put in place for eligible students to apply for loans. The Department works in close concert with its counterpart in England, now the Department for Innovation, Universities and Skills, whose draft regulations were received by the Department on 20 June 2007, after which the Department finalised these Regulations. The Department mentions, among other things, the time taken to obtain a final print. I mention that it could perhaps have laid the Regulations in typescript, but even then there would have been a slight breach of the 21-day rule and of course I take notice of the July holiday period. Accordingly, taking all the factors into account, I am of the view that the breach of the 21-day rule, as explained by the Department, was reasonable in the circumstances.
The transmissible Spongiform Encephalopathies (Amendment)
Regulations
(Northern Ireland) 2007 (S.R. 2007/339)
24. I draw the attention of the Committee for Health, Social Services and Public Safety and the Assembly to the Transmissible Spongiform Encephalopathies (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/339) on the ground that they were laid in breach of the 21-day rule and after they came into operation . The Regulations were made on 18 July 2007 and came into operation on 19 July (Thursday). They were laid on 24 July 2007 (Tuesday).
25. The Food Standards Agency has explained that the Regulations are in breach of the 21-day rule because the relevant Community Regulation (Commission Regulation (EC) No. 722/2007) came into operation on 1 July 2007 requiring changes in domestic legislation as soon as possible thereafter. In the circumstances it seems to me that the explanation is reasonable, although I would stress to the Food Standards Agency (and to Departments generally) that in cases such as this they should strive to lay statutory rules before they come into operation. I note that the equivalent Regulations for England, for Scotland and for Wales were laid (before Parliament, the Scottish Parliament and the National Assembly for Wales, respectively) before they came into force.
The Conservation (Natural Habitats, etc.)
(Amendment ) Regulations (Northern Ireland)
2007 (S.R. 2007/345)
26. I draw the attention of the Committee for the Environment and the Assembly to the Conservation (Natural Habitats, etc.) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/345) on the ground that it is defectively drafted in one respect, acknowledged by the Department of the Environment.
27. In amendments made by regulations 26, 28 and 30 the Department intended to refer to 21 August 2007 as the operative date to prevent certain negative impacts on European offshore marine sites occurring as a result of the adoption of planning schemes on or after that date. Unfortunately, the amendments as drafted refer to “after 21st August 2007” instead of “on or after 21st August 2007”. The Department has, however, explained that Planning Service has no intention of adopting any of the schemes referred to in the provisions in question on 21 August 2007, so that the error, whilst unfortunate, will cause no risk to European marine offshore sites. In the circumstances it sees no benefit in further amending the provisions in question since
there will be no implications in practice. Having considered the Department’s explanation, I agree.
W G Nabney
Examiner of Statutory Rules
7 September 2007
APPENDIX
(The attention of the appropriate Committees and the Assembly is drawn to those statutory rules marked in bold)
Statutory rule subject to confirmatory procedure
The Working Time (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/340)
The Company and Business Names (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/344)
The Child Support (Miscellaneous Amendments) Regulations (Northern Ireland) 2007 (S.R. 2007/347)
Statutory rules subject to negative resolution
The Bovine Products (Restrictions on Placing on the Market) (No. 2) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/307)
The Smoke Control Areas (Exempted Fireplaces) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/308)
The Education (Core Syllabus for Religious Education) Order (Northern Ireland) 2007 (S.R. 2007/309)
The Traffic Signs (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/311)
The Harbour Works (Environmental Impact Assessment) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/312)
The Folly Lane, Downpatrick (Stopping-Up) Order (Northern Ireland) 2007 (S.R. 2007/313)
The Products of Animal Origin (Third Country Imports) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/314)
The Newtown Heights, Belfast (Footpath) (Abandonment) Order (Northern Ireland) 2007 (S.R. 2007/315)
The Elgin Street, Belfast (Footpath) (Abandonment) Order (Northern Ireland) 2007 (S.R. 2007/316)
The Motor Vehicles (Driving Licences) (Amendment No. 2) Regulations (Northern Ireland) 2007 (S.R. 2007/317)
The Road Traffic (Fixed Penalty) (Offences) (Amendment) Order (Northern Ireland) 2007 (S.R. 2007/318)
The Road Traffic (Fixed Penalty) Order (Northern Ireland) 2007 (S.R. 2007/319)
The Electricity Regulations (Northern Ireland) 2007 (S.R. 2007/321)
The Electricity (Class Exemptions from the Requirement for a Licence) Order (Northern Ireland) 2007 (S.R. 2007/322)
The Road Transport (Working Time) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/323)
The Miscellaneous Food Additives and the Sweeteners in Food (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/325)
The Student Fees (Qualifying Courses and Persons) (2006 Regulations) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/326)
The Animals and Animal Products (Import and Export) (Circuses and Avian Quarantine) Regulations (Northern Ireland) 2007 (S.R. 2007/327)
The Student Fees (Qualifying Courses and Persons) Regulations (Northern Ireland) 2007 (S.R. 2007/328)
The Education (Student Loans) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/329)
The Social Security (Claims and Payments) (Amendment No. 3) Regulations (Northern Ireland) 2007
(S.R. 2007/330)
The Social Security (Miscellaneous Amendments No. 3) Regulations (Northern Ireland) 2007 (S.R. 2007/332)
The Plant Health (Amendment) Order (Northern Ireland) 2007 (S.R. 2007/333)
Students Awards (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/336)
The Pneumoconiosis, etc., (Workers’ Compensation) (Prescribed Occupations) Order (Northern Ireland) 2007 (S.R. 2007/337)
The Occupational Pension Schemes (Winding Up, Winding Up Notices and Reports, etc.) (Amendment) Regulations (Northern Ireland) 2007 (S.R.2007/338)
The Transmissible Spongiform Encephalopathies (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/339)
The Social Security (Industrial Injuries) (Prescribed Diseases) (Amendment No. 2) Regulations (Northern Ireland) 2007 (S.R. 2007/341)
The Further Education (Student Support) (Eligibility) Regulations (Northern Ireland) 2007 (S.R. 2007/342)
The Industrial Training Levy (Construction Industry) Order (Northern Ireland) 2007 (S.R. 2007/343)
The Conservation (Natural Habitats, etc.) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/345)
The Roads (Environmental Impact Assessment) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/346)
The Route U1541 Creevangar Road, Omagh (Abandonment) Order (Northern Ireland) 2007 (S.R. 2007/350)
The Queen’s Road, Antrim (Abandonment) Order (Northern Ireland) 2007 (S.R. 2007/351)
The Nutrition and Health Claims Regulations (Northern Ireland) 2007 (S.R.2007/349)
The Food (Suspension of the Use of E 128 Red 2G as Food Colour) Regulations (Northern Ireland) 2007 (S.R.2007/352)