Session 2007/2008
Thirteenth Report
Report of the
Examiner of Statutory Rules
to
the Assembly
and
the Appropriate Committees
11 April 2008
Committee for Agriculture and Rural Development |
S.R. 2008 Nos. 85, 98, 125 |
| Committee for Employment and Learning | S.R. 2008 Nos. 95, 129 |
Committee for Enterprise, Trade and Investment |
S.R. 2008 No. 94, 133, 134 |
Committee for Finance and Personnel |
S.R. 2008 Nos. 123, 124, |
| Committee for Health, Social Services and Public Safety | S.R 2008 Nos. 82, 89, 90, 91, 96, 99, 126, 128, 130, 131 |
Committee for Regional Development |
S.R. 2008 No. 14, 135, 136 |
Committee for Social Development |
S.R. 2008 Nos. 84, 88, 92, 97, 100, 101, 102, 103,105, 111, 112, 113, 115, 116, 117, 119, 120, 121 |
NIA 130/07-08
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 Health and Personal Social Services (Superannuation Scheme and Compensation for Premature Retirement) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/96)
The Health and Personal Social Services (Superannuation Scheme, Injury Benefits, Additional Voluntary Contributions and Compensation for Premature Retirement) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/130)
3. I draw the attention of theCommittee for Health, Social Services and Public Safety and the Assembly to the Health and Personal Social Services (Superannuation Scheme and Compensation for Premature Retirement) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/96) andthe Health and Personal Social Services (Superannuation Scheme, Injury Benefits, Additional Voluntary Contributions and Compensation for Premature Retirement) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/130) on the ground that they were laid in breach of the 21-day rule (that is to say, the well-established rule of practice whereby, in the case of a statutory rule that is subject to negative resolution, the Department or other rule-making body should allow at least 21 days between the laying of that statutory rule and its coming into operation). The Department has explained the breaches and I am satisfied that it has acted reasonably. I add that in both cases the changes made by both sets of Regulations have retrospective effect as authorised by the primary legislation under which they are made, namely, the Superannuation ( Northern Ireland) Order 1972.
The Eggs and Chicks Regulations ( Northern Ireland) 2008 (S.R. 2008/98)
4. I draw the attention of theCommittee for Agriculture and Rural Development and the Assembly to the Eggs and Chicks Regulations (Northern Ireland) 2008 (S.R. 2008/98) on the ground that one provision concerning appeals from Departmental decisions, which the Department of Agriculture and Rural Development maintains is compatible with the Convention rights (in this case Article 6(1) ECHR), could have been framed, consistent with other statutory provisions, so as to minimise the risk of being incompatible. I make that point against the background of the corresponding Regulations for England (S.I. 2007/2245) and Scotland (S.S.I. 2008/129) and consider that it is something that should be drawn to the attention of the Committee and the Assembly.
5. Regulation 17 provides for appeals from certain decisions. It is in the following terms:
“Appeals
17. —(1) A person may, within 21 days of the notification of a decision to which this regulation applies, make written representations concerning the decision to a person appointed for this purpose by the Department.
(2) The appointed person shall consider the representations and report in writing to the Department.
(3) The Department shall give the person who made representations written notification of its final determination and the reasons for it.
(4) The procedure in this regulation applies to—
(a) a decision by the Department to refuse to register an establishment as a pedigree breeding establishment, other breeding establishment or hatchery under Article 3 of Council Regulation (EEC) No. 2782/75, or to withdraw such a registration;
(b) a decision by the Department to refuse to authorise an undertaking as a packing centre to grade eggs under Article 5(2) of Council Regulation (EC) No. 1028/2006, or to withdraw such an authorisation; and
(c) a decision by an authorised officer to seize any computer or associated equipment under regulation 12(4).
(5) The decision to withdraw a registration or authorisation referred to in paragraph (4) shall not take effect until the time limit for making representations has expired, or, if such representations are made, until the final determination by the Department in accordance with paragraph (3).”.
There is an independent element of sorts from the decision of the Department or authorised officer. But the final determination lies with the Department on the basis of the appointed person’s report and there is no provision for oral representations before the appointed person; nor is there any provision for further representations to the Department. So the procedure has its limitations. Contrast the appeal procedure for England is in the following terms:
“Appeals
18. —(1) Any person who is aggrieved by a decision specified in paragraph (2) may appeal against that decision to a magistrates’ court.
(2) A specified decision for the purpose of paragraph (1) is—
(a) a decision by the Secretary of State to refuse to register an establishment as a pedigree breeding establishment, other breeding establishment or hatchery under Article 3 of Council Regulation ( EEC ) No. 2782/75, or to withdraw such a registration;
(b) a decision by the Secretary of State to refuse to authorise an undertaking as a packing centre to grade eggs under Article 5(2) of Council Regulation (EC) No. 1028/2006, or to withdraw such an authorisation; and
(c) a decision by an authorised officer to seize any computer or associated equipment under regulation 13(4).
(3) Section 37(3), (5) and (6) of the Act [the Food Safety Act 1990] has effect in relation to an appeal under this regulation as it has effect in relation to an appeal under that section, but with the omission—
(a) in subsection (3), of the words “, or an appeal to such a court for which provision is made by regulations under Part II of this Act,”;
(b) of subsection 5(b), and the word “or” immediately preceding it; and
(c) in subsection (6)(a), of the words “or to the sheriff”.
(4) The withdrawal of an authorisation or registration referred to in paragraph (2) shall not take effect until the time for appealing against it has expired, and, if an appeal is lodged, until the appeal is finally disposed of, withdrawn or struck out for want of prosecution”.
There is an appeal to a magistrates’ court. The Scottish regulations provide, similarly, for an appeal to a sheriff court. So I asked the Department why the Regulations did not include an appeal to a court of summary jurisdiction (cf Article 37 of the Food Safety (Northern Ireland) Order 1991) either at a first or second stage; whether an application for judicial review was the only remedy against the Department’s decision (final determination – administratively); and whether it was satisfied that the appeal procedure was compliant with Article 6 ECHR. The Department replied on 9 April 2008 (see Appendix 2) in terms that it had been had been considering a court-based appeal procedure similar to that in England and Scotland but that it had received representations from the Ulster Farmers’ Union, favouring an independent appeals system similar to that established by other legislation, and in light of those representations, the present appeal procedure was adopted: the Department sets out various precedents. The Department has concluded that the appeal procedure is compatible with Article 6.
6. I have to say that in this case I do not find the Department’s view fully convincing. It seems to me that the Department could (and should in order to minimise the risk of incompatibility with the Convention rights) amend the Regulations at an early opportunity to provide for a second stage appeal to a court of summary jurisdiction:I understand that a similar approach has recently been adopted in the Taxis Bill.That would take account of the perfectly understandable representations made by the Ulster Farmers’ Union, but it would at the same time provide recourse to an independent and impartial tribunal established by law without the need to resort to the expensive route of an application for judicial review. I so recommend and report accordingly.
The Rice Products from the United States of America (Restriction on First Placing on the Market) Regulations ( Northern Ireland) 2008 (S.R. 2008/99)
7. I draw the attention of theCommittee for Health, Social Services and Public Safety and the Assembly to The Rice Products from the United States of America (Restriction on First Placing on the Market) Regulations (Northern Ireland) 2008 (S.R. 2008/99) on the ground that they were laid in breach of the 21-day rule. The Food Standards Agency has explained the breach on the basis that the Commission Decision underlying the Regulations must be implemented as soon as possible after it comes into operation: the Decision was notified to member States on 26 February 2008, on which date it came into operation; the Regulations were made on 10 March 2008, laid on 11 March 2008 and came into operation on 12 March 2008. I am satisfied that the Food Standards Agency acted reasonably.
The Rate relief (lone pensioner allowance) Regulations ( Northern Ireland) 2008 (S.R. 2008/128)
8. I draw the attention of theCommittee for Finance and Personnel and the Assembly to the Rate Relief (Lone Pensioner Allowance) Regulations ( Northern Ireland) 2008 (S.R. 2008/124) on the ground that they were laid in breach of the 21-day rule. The Department of Finance and Personnel has explained the breach and I am satisfied that it acted reasonably: it has apologised for the breach and minimised the delay in laying as much as it could. These Regulations were the second of two sets of Regulations resulting from the review that followed the new system of domestic rating introduced in April 2007. The drafting of the Regulations followed the ending on a consultation of 25 January 2008; the Regulations were made on 14 March 2008, were laid on the same day and came into operation on 1 April 2008 (which is of course the start of the rating year, so there was a fixed commencement date).
The Optical Charges and Payments (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/128)
9. I draw the attention of theCommittee for Health, Social Services and Public Safety and the Assembly to the Optical Charges and Payments (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/128) on the ground that they were laid in breach of the 21-day rule. The Department of Health, Social Services and Public Safety has explained the breach and I am satisfied that the Department acted reasonably. I understand from the Department that there was consideration by the Minister and by the Committee following similar changes in other parts of the United Kingdom and that the ophthalmic profession would have felt aggrieved if a similar increase in optical voucher values was not implemented with effect from 1 April 2008. The Regulations were made on 18 March 2008, laid on the same day and came into operation on 1 April 2008.
The Education (Student Loans) (Repayment) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/129)
10. I draw the attention of theCommittee for Employment and Learning and the Assembly to the Education (Student Loans) (Repayment) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/129) on the ground that they were laid in breach of the 21-day rule. The Department has explained the breach and I am satisfied that it acted reasonably. The corresponding provisions for Great Britain (in S.I. 2008/54) were made on 28 February 2008, laid before Parliament on 7 March 2008 and came into operation on 1 April 2008. The proposed Regulations for Northern Ireland were considered by the Committee on 12 March 2008, made on 13 March 2008, laid on 19 March 2008 and came into operation on 1 April 2008 (which is in effect a fixed commenced date for these Regulations).
The Healthy Start Scheme and Day Care Food Scheme (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/131)
11. I draw the attention of theCommittee for Health, Social Services and Public Safety and the Assembly to The Healthy Start Scheme and Day Care Food Scheme (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/131) on the ground that one provision inserted into the principal Regulations would have been more appropriately expressed as a transitional provision in the amending Regulations. The Department of Health, Social Services and Public Safety has acknowledged the point for future Regulations.
Regulation 3(b) inserts a new paragraph (3A) into regulation 10 of the principal Regulations thus:
“(3A) Where Regulations amend the amount in paragraph (3), the new amount shall only apply in relation to vouchers issued …. on or after the date of coming into operation of the amending Regulations.”.
It seems to me that it would have been more appropriate drafting to have framed such a provision as a transitional provision in the amending Regulations rather than placing the provision on the face of the principal Regulations: for one thing, what is inserted by amending Regulations becomes part of the principal Regulations so the reference to the amending Regulations looks odd. I suggested something along the following lines:
“Transitional provision
. The amendment of regulation 10(3) of the principal Regulations made by regulation [3] shall apply only apply in relation to vouchers issued …. after the coming into operation of these Regulations.”.
12. I also draw attention to the Fifteenth Report for Session 2007 – 08 of the Joint Committee on Statutory Instruments at Westminster on the corresponding Regulations for England (S.I. 2008/438). The Joint Committee drew attention to a defect in the drafting of the Regulations which seemed to have the effect of nullifying the intended effect of new regulation 3(7) of the principal Regulations for England. The same point arises in relation to new regulation 3(7) of the principal Regulations for Northern Ireland, and I have suggested to the Department that it liaise with the Department of Health on the timing of suitable amendments.
The Companies (Late Filing Penalties) Regulations
( Northern Ireland) 2008 (S.R. 2008/133)
The Limited Liability Partnerships (Filing Periods and Late Filing Penalties) Regulations ( Northern Ireland) 2008
(S.R. 2008/134)
13. I draw the attention of the Committee for Enterprise, Trade and Investment and the Assembly to the Companies (Late Filing Penalties) Regulations (Northern Ireland) 2008 (S.R. 2008/133) and the Limited Liability Partnerships (Filing Periods and Late Filing Penalties) Regulations (Northern Ireland) 2008 (S.R. 2008/134) on the ground that they were laid in breach of the 21-day rule. The Department has explained the breach indicating that there was a matter concerning the drafting of S.R. 2008/134 raised by the Office of the Legislative Counsel (to whom both sets of Regulations were referred at a late stage on the basis that amendments to primary legislation were involved): with the St Patrick’s Day holiday intervening, an outstanding matter was resolved on 18 March 2008, the Regulations were made on 19 March 2008 and laid on the same day, coming into operation on 6 April 2006 in line with the commencement date for the corresponding Regulations for Great Britain. I am satisfied that the Department acted reasonably.
W G Nabney
Examiner of Statutory Rules
11 April 2008
APPENDIX 1
(The attention of the appropriate Committees and the Assembly is drawn to those statutory rules marked in bold )
Draft statutory rule subject to the approval of the Assembly
The General Register Office (Fees) Order ( Northern Ireland) 2008
Statutory rule subject to affirmative resolution
The Insolvency (Disqualification from Office: General) Order ( Northern Ireland) 2008 (S.R. 2008/94)
Statutory rule subject to the approval of the Assembly (confirmatory procedure)
The Social Security Benefits Up-rating Order ( Northern Ireland) 2008 (S.R. 2008/92)
Statutory rules subject to negative resolution
M2/A6 (Ballee East Link Road) Order ( Northern Ireland) 2008 (S.R. 2008/14)
The Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/77)
The Meat Products (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/82)
The Guaranteed Minimum Pensions Increase Order ( Northern Ireland) 2008 (S.R. 2008/84)
The Plant Protection Products (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/85)
The Social Security Pensions (Home Responsibilities) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/88)
The Meat (Official Controls Charges) Regulations ( Northern Ireland) 2008 (S.R. 2008/89)
The Recovery of Health Services Charges (Amounts) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/90)
The Health and Personal Social Services (Assessment of Resources) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/91)
Certification Officer (Fees) Regulations ( Northern Ireland) 2008 (S.R. 2008/95)
The Health and Personal Social Services (Superannuation Scheme and Compensation for Premature Retirement) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/96 )
The Occupational and Personal Pension Schemes (General Levy) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/97)
The Eggs and Chicks Regulations ( Northern Ireland) 2008 (S.R. 2008/98)
The Rice Products from the United States of America (Restriction on First Placing on the Market) Regulations ( Northern Ireland) 2008 (S.R. 2008/99)
The Housing Benefit (Executive Determinations) Regulations ( Northern Ireland) 2008 (S.R. 2008/100)
The Housing Benefit (Local Housing Allowance) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/101)
The Housing Benefit (State Pension Credit) (Local Housing Allowance) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/102)
The Housing Benefit (Local Housing Allowance) (Miscellaneous and Consequential Amendments) Regulations ( Northern Ireland) 2008 (S.R. 2008/103)
The Social Security Benefits Up-rating Regulations ( Northern Ireland) 2008(S.R. 2008/105)
The Motor Vehicles Testing (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/109)
The Discretionary Financial Assistance (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/111)
The Social Security (Miscellaneous Amendments) Regulations ( Northern Ireland) 2008(S.R. 2008/112)
The Social Security (Industrial Injuries) (Dependency) (Permitted Earnings Limit) Order ( Northern Ireland) 2008 (S.R. 2008/113)
The Workmen’s Compensation (Supplementation) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/115)
The Occupational Pension Schemes (Internal Dispute resolution Procedures) (Consequential and Miscellaneous Amendments) Regulations ( Northern Ireland) 2008 (S.R. 2008/116)
The Occupational Pension Schemes (Non-European Schemes Exemption) Regulations ( Northern Ireland) 2008 (S.R. 2008/117)
The Child Support (Miscellaneous Amendments) Regulations ( Northern Ireland) 2008(S.R. 2008/119)
The Social Security Pensions (Low Earnings Threshold) Order ( Northern Ireland) 2008(S.R. 2008/120)
The Social Security Revaluation of Earnings Factors Order ( Northern Ireland) 2008(S.R. 2008/121)
The Rate Relief (Lone Pensioner Allowance) Regulations ( Northern Ireland) 2008 (S.R. 2008/124)
The Potatoes Originating in Egypt (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/125)
The Honey (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/126)
The Optical Charges and Payments (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/128)
The Education (Student Loans) (Repayment) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/129)
The Health and Personal Social Services (Superannuation Scheme, Injury Benefits, Additional Voluntary Contributions and Compensation for Premature Retirement) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/130 )
The Healthy Start Scheme and Day Care Food Scheme (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/131)
The Companies (Late Filing Penalties) Regulations ( Northern Ireland) 2008 (S.R. 2008/133)
The Limited Liability Partnerships (Filing Periods and Late Filing Penalties) Regulations ( Northern Ireland) 2008 (S.R. 2008/134)
The Motorways Traffic Regulations ( Northern Ireland) 2008 (S.R. 2008/135)
The Ballyboley Road, Larne (Abandonment) Order ( Northern Ireland) 2008(S.R. 2008/136)
Statutory rule subject to laying but not subject to any Assembly proceedings
Pensions Increase (Review) Order ( Northern Ireland) 2008 (S.R. 2008/123)
APPENDIX 2
Response from the Department of Agriculture and Rural Development
9 April 2008
THE EGGS AND CHICKS REGULATIONS ( NORTHERN IRELAND) 2008 - SR No. 98
Thank you for your e-mail of 14 March, in which you requested the Department's observations on the compatibility with Article 6 of the European Convention on Human Rights of the above-mentioned Regulations and specifically, regulation 17 ( appeals).
In relation to the Department’s reasons for adopting the appeals system set out in regulation 17, it was initially the Department's intention to mirror the appeals system in the GB equivalent regulations (SI 2007/2245) i.e. an appeal to the magistrates court. However, the Ulster Farmers Union made representations to the Department and their arguments were persuasive in favour of an independent appeals system, similar to that established by other legislation which has resulted in mutual benefit to both the industry and the Department, in terms of a cost effective and more efficient means of handling such appeals. The views of the UFU were subsequently considered by the Minister, who concluded that a similar system should be established in these Regulations.
The Department carefully considered whether this system was compliant with Article 6 and concluded that it is. As you have noted, judicial review is available to any person aggrieved by a decision. The purpose of the independent tribunal appeal system is to ensure that there is a transparent decision making process in place with written representations by the parties and a full report by the independent person. On the basis of this procedure, the High Court in a judicial review will be in a position to consider any matter on its merits and, in the Department’s view, this means that the decision making process as set out in regulation 17 is Article 6 compliant.
In this context, we would draw your attention to other similar legislation which has provided for this appeal system, i.e. to a person appointed to consider representations, e.g. The Welfare of Animals (Transport) Regulations (NI) 2006 ( SR No. 538) and The Diseases of Animals (Approved Disinfectants) (England) Order 2007 (SI No. 448), amongst others. In the circumstances, the Department does not intend to amend the Regulations.