Session 2007/2008
Eighth Report
Report of the
Examiner of Statutory Rules
to
the Assembly
and
the Appropriate Committees
18 January 2008
| Committee for Agriculture and Rural Development | S.R. 2007 Nos. 490, 499, 503 |
| Committee for Employment and Learning | S.R. 2007 No. 494 |
| Committee for the Environment | S.R. 2007 Nos. 481, 505 |
| Committee for Health, Social Services and Public Safety | S.R. 2007 Nos. 482, 496, 497, 498 |
| Committee for the Office of the First Minister and deputy First Minister | S.R. 2007 No. 507 Draft S.R. The Disability Discrimination (Private Clubs, etc.) Regulations (Northern Ireland) 2008 |
| Committee for Regional Development | S.R. 2007 No. 504, S.R. 2008 No.1 |
NIA 77/07-08
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 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 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 Official Feed and Food Controls Regulations
(Northern Ireland) 2007 (S.R. 2007/482)
3. I draw the attention of the Committee for Health, Social Services and Public Safety and the Assembly to the Official Feed and Food Controls Regulations (Northern Ireland) 2007 (S.R. 2007/482) on the grounds that it was laid in breach of the 21-day rule, explained by the Food Standards Agency, and that it is defectively drafted in one respect, acknowledged by the Agency.
4. The Food Standards Agency intended to bring the Regulations into operation on 21 December 2007 (as indicated by its covering letter to the Business Office and the accompanying explanatory memorandum), and that date appears in italics on the front page of the Regulations: that was to comply with the 21-day rule and was a change from its original intention to bring the Regulations into operation on the same date as other parts of the United Kingdom (14 December 2007). Unfortunately, however, regulation 1 actually provides that the Regulations come into operation on 14 December 2007. The Food Standards Agency expressly drew my attention to this as soon as it became aware of what had happened: the Agency rightly took the view that the express commencement provision in regulation 1 had effect over the introductory italic indication (which is not an operable part of the Regulations). Once again, in drawing attention to this inadvertent breach of the 21-day rule, I would emphasise the need for Departments and other rule-making authorities to carefully check commencement dates (and any related dates) in the body of the provisions in question.
5. The drafting defect, acknowledged by the Food Standards Agency, is not one such as would affect the operation of the Regulations: it seems clear in the context of regulation 16(5) that the reference to "regulation 19" should be a reference to "regulation 18". Regulation 18 is about the offence of obstruction, and regulation 16(5) identifies the authority responsible for its enforcement. I am satisfied that the defect is not such as to affect the operation of these provisions and have indicated to the Food Standards Agency that it is something that could await correction until a suitable legislative opportunity arises.
The Meat (Official Controls Charges) (Amendment No. 2)
Regulations (Northern Ireland) 2007
(S.R. 2007/496)
6. I draw the attention of the Committee for Health, Social Services and Public Safety and the Assembly to the Meat (Official Controls Charges) (Amendment No. 2) Regulations (Northern Ireland) 2007 (S.R. 2007/496) on the grounds that they are defectively drafted in one respect and that the drafting could be clearer for another, both points being acknowledged by the Food Standards Agency. I have had the advantage of reading the 17th Report, 2007 (Session 3) of the Subordinate Legislation Committee of the Scottish Parliament, published on 20 December 2007, in relation to the corresponding Regulations for Scotland (S.S.I. 2007/538).
7. Paragraph 2 of Schedule 2 is drafted in a way such that it purports to take into account official controls charges already levied under the previous Regulations (S.R. 2007/ 108) from 1 April 2007 until the coming into operation on these regulations on 31 December 2007 for the purposes of certain calculations, whereas the definition of "official Controls charges" is not capable of including charges levied under the previous Regulations. The Food Standards Agency has acknowledged the error and intends to correct it in further Regulations to be made in March.
8. The Table of standard charges in Schedule 2 refers to the generic term "poultry" without qualification and also to "ducks and geese" and "turkeys", all of which come within the definition of "poultry" in regulation 2(1); similarly it refers to "land mammals" without excluding other land mammals referred to elsewhere in the Table. The Food Standards Agency intends to revisit this aspect of the drafting in the context of the Regulations to be made in March with a view to considering whether it could be made clearer.
The Food Labelling (declaration oF Allergens) (Regulations (Northern Ireland) 2007 (S.R. 2007/498)
9. I draw the attention of the Committee for Health, Social Services and Public Safety and the Assembly to the Food Labelling (Declaration of Allergens) Regulations (Northern Ireland) 2007 (S.R. 2007/498) on the ground that they were laid in breach of the 21-day rule, explained by the Food Standards Agency. The breach was marginal, in that the Regulations were laid 20 days before they came into operation and the Food Standards Agency alerted me to the problem in advance of laying, apologising for the delay in laying: certain administrative difficulties arose between making and laying, but I am satisfied that the Food Standards Agency acted reasonably in the circumstances.
The Export Restrictions (Foot-and-Mouth Disease)
(Revocation) Regulations (Northern Ireland) 2007
(S.R. 2007/503)
10. I draw the attention of the Committee for Agriculture and Rural Development and the Assembly to the Export Restrictions (Foot-and-Mouth Disease) (Revocation) Regulations (Northern Ireland) 2007 (S.R. 2007/503) on the ground that they were laid in breach of the 21-day rule, as explained by the Department of Agriculture and Rural Development: as with the earlier Regulations, this was necessary to facilitate the continuation of trade between Northern Ireland and other member States and it seems to me that that explanation is reasonable.
The Fair Employment (Specification of Public Authorities)
(Amendment) Order (Northern Ireland) 2007
(S.R. 2007/507)
11. I draw the attention of the Committee for the Office of the First Minister and deputy First Minister and the Assembly to the Fair Employment (Specification of Public Authorities) (Amendment) Order (Northern Ireland) 2007 (S.R. 2007/507) on the ground that the Order was laid in breach of the 21-day Rule, explained by the Office of the First Minister and deputy First Minister. The Order, which updates the Schedule of Public Authorities specified for the purpose of the monitoring requirements under the Fair Employment and Treatment (Northern Ireland) 1998, was made on 20 December 2007, laid on 21 December 2007 and came into operation on 1 January 2008: 1 January is a fixed date for monitoring purposes under the legislation. The Office of the First Minister and deputy First Minister has, in its explanation, provided me with a timetable relating to the making of the Order, from which I note, amongst other things, that there was correspondence on the proposed Order between the Office and the Committee between 28 November 2007 and 10 December 2007. Accordingly, the explanation from the Office of the First Minister and deputy First Minister seems to be reasonable in the circumstances.
W G Nabney
Examiner of Statutory Rules
18 January 2008
APPENDIX
(The attention of the appropriate Committees and the Assembly is drawn to those statutory rules marked in bold)
Draft statutory rule for the approval of the Assembly
The Disability Discrimination (Private Clubs, etc.) Regulations (Northern Ireland) 2008
Statutory rules subject to negative resolution
Motor Vehicles (Construction and Use) (Amendment No. 4) Regulations (Northern Ireland) 2007 (S.R. 2007/481)
The Official Feed and Food Controls Regulations (Northern Ireland) 2007 (S.R. 2007/482)
The Milk and Milk Products (Pupils in Educational Establishments) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/490)
The Transfer of Undertakings and Service Provision Change (Protection of Employment) (Consequential Amendments) Regulations (Northern Ireland) 2007 (S.R. 2007/494)
The Meat (Official Controls Charges) (Amendment No. 2) Regulations (Northern Ireland) 2007 (S.R. 2007/496)
The Fishery Products (Official Controls Charges) (Amendment No. 2) Regulations Northern Ireland) 2007 (S.R. 2007/497)
The Food Labelling (Declaration of Allergens) Regulations (Northern Ireland) 2007 (S.R. 2007/498)
Shrimp Fishing Nets (Amendment) Order (Northern Ireland) 2007 (S.R. 2008/499)
The Export Restrictions (Foot-and-Mouth Disease) (Revocation) Regulations (Northern Ireland) 2007 (S.R. 2007/503)
The Devonshire Way and Albert Street, Belfast (Footpaths) (Abandonment) Order (Northern Ireland) 2007 (S.R. 2007/504)
The Local Government (Constituting a Joint Committee a Body Corporate) (Amendment) Order (Northern Ireland) 2007 (S.R. 2007/505)
The Fair Employment (Specification of Public Authorities) (Amendment) Order (Northern Ireland) 2007 (S.R. 2007/507)
The Moneymore Road, Cookstown (Abandonment) Order (Northern Ireland) 2008 (S.R. 2008/1)