Session 2007/2008
Fourteenth Report
Report of the
Examiner of Statutory Rules
to
the Assembly
and
the Appropriate Committees
25 April 2008
| Committee for Agriculture and Rural Development | S.R. 2008 Nos. 114, 172, 174 |
| Committee for Enterprise, trade and Investment | S.R. 2008 No.161 |
| Committee for the Environment | S.R. 2008 No. 160 |
| Committee for Health, Social Services and Public Safety | S.R 2008 No. 171 |
| Committee for the Office of the First Minister and deputy First Minister | S.R 2008 Nos. 140, 159 |
| Committee for Regional Development | S.R. 2008 Nos. 149, 173 |
| Committee for Social Development | S.R. 2008 Nos. 144, 145, 146, 169, |
NIA 133/07-08
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 OCCUPATIONAL PENSION SCHEMES (LEVIES) (AMENDMENT) REGULATIONS (NORTHERN IRELAND) 2008 (S.R. 2008/145)
THE PENSION PROCTECTION FUND (COMPENSATION CAP) ORDER (NORTHERN IRELAND) 2008 (S.R. 2008/146)
3. I draw the attention of the Committee for Social Development and the Assembly to the Occupational Pension Schemes (Levies) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/145) and the Pension Protection Fund (Compensation Cap) Order (Northern Ireland) 2008 (S.R. 2008/146) on the ground that they were laid in breach of the 21-day rule (that is to say, the well-established practice whereby a Department other rule-making body should, in the case of a statutory rule that is subject to negative resolution, allow at least 21 days between the laying of a statutory rule and its coming into operation). The Department for Social Development has provided an explanation that is wholly reasonable ─ to the extent that in this case it could not, within the relevant statutory powers, have acted otherwise. Both statutory rules were made on 28 March 2008, one day after the corresponding statutory instruments for Great Britain (S.I. 2008/911 and S.I 2008/909, respectively), and were laid the same day; they came into operation on the same days as the corresponding statutory instruments for Great Britain (31 March 2008 and 1 April 2008, respectively). In both cases the corresponding provisions for Great Britain were subject to a draft affirmative procedure at Westminster (so that the 21-day rule did not apply because they were laid in draft); and in both cases the Northern Ireland provisions (subject to negative resolution) were expressly contingent on the making of the statutory instruments at Westminster, so that the Department for Social Development had no power to make them earlier than it did. At the same time, the whole system is based on the assumption of parity between Great Britain and Northern Ireland, including parity as to timing of operational dates.
THE SEX DISCRIMINATION ORDER 1976 (AMENDMENT) REGULATIONS (NORTHERN IRELAND) 2008 (S.R. 2008/159)
4. I draw the attention of the Committee for the Office of the First Minister and deputy First Minister and the Assembly to the Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/159) on the ground that they were laid in breach of the 21-day rule. The Office of the First Minister and deputy First Minister has provided me with an explanation that appears to be reasonable, and I am satisfied that it is. In this case there was in effect a commencement dated fixed to the commencement date in respect of related Regulations made on 1 April 2008 and extending throughout the United Kingdom (namely, the Sex Discrimination (Amendment of Legislation) Regulations 2008 (S.I. 2008/963) implementing Council Directive 2004/113/EC (the Gender Directive)), and fixed also to the Regulations for Great Britain corresponding to these Regulations (S.I. 2008/656) (the corresponding GB Regulations). The corresponding GB Regulations were made on 8 March 2008 and came into force on 6 April 2008. These Regulations were discussed as proposed Regulations with the Committee in correspondence and a meeting with officials between 27 February and 10 March 2008; they were finally settled by solicitors and by the Office of the Legislative Counsel (since they directly amend primary legislation) on 21 March 2008; and they were agreed by Ministers on 3 April 2008 and made on 4 April 2008, on which date they were laid. As indicated above, their commencement date was 6 April 2008.
THE SPECIFIED PRODUCTS FROM CHINA (RESTRICTION ON FIRST PLACING ON THE MARKET) REGULATIONS (NORTHERN IRELAND) 2008 (S.R. 2008/171)
5. I draw the attention of the Committee for Health, Social Services and Public Safety and the Assembly to the Specified Products from China (Restriction on First Placing on the Market) Regulations (Northern Ireland) 2008 (S.R. 2008/171) on the ground that they were laid in breach of the 21-day rule. The Food Standards Agency has provided an explanation that appears to be reasonable and I am satisfied that it is. The Regulations implement Commission Decision 2008/289/EC on emergency measures to deal with unauthorised genetically modified organism Bt63 in rice products originating in, or consigned from, China being imported into the European Community in food or animal feed. The Decision was not formally notified until 3 April 2008. The Regulations needed to be in operation by 15 April 2008 at the latest so as to allow for enforcement of the Decision: they were made on 11 April 2008 and laid on the same day.
W G Nabney
Examiner of Statutory Rules
25 April 2008
APPENDIX
(The attention of the appropriate Committees and the Assembly is drawn to those statutory rules marked in bold)
Statutory rule subject to the approval of the Assembly (confirmatory procedure)
The Occupational Pension Schemes (Levy Ceilings) Order (Northern Ireland) 2008 (S.R. 2008/144)
Statutory rules subject to negative resolution
The Seeds (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/114)
The Disability Discrimination (Guidance on the Definition of Disability) (Revocation) Order (Northern Ireland) 2008 (S.R. 2008/140)
The Occupational Pension Schemes (Levies) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/145)
The Pension Protection Fund (Compensation Cap) Order (Northern Ireland) 2008 (S.R. 2008/146)
The B2 Silverwood Road, Lurgan (Abandonment) Order (Northern Ireland) 2008 (S.R. 2008/149)
The Sex Discrimination Order 1976 (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/159)
The Waste Management Licences (Consultation and Compensation) Regulations (Northern Ireland) 2008 (S.R. 2008/160)
The Companies (Tables A to F) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/161)
The Social Security (Work-focused Interviews with Partners) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/169)
The Specified Products from China (Restriction on First Placing on the Market) Regulations (Northern Ireland) 2008 (S.R. 2008/171)
Organic Farming Regulations (Northern Ireland) 2008 (S.R. 2008/172)
The Antiville and Ballymena Road, Larne (Abandonment) Order (Northern Ireland) 2008 (S.R. 2008/173)
Countryside Management Regulations (Northern Ireland) 2008 (S.R. 2008/174)