Session 2007/2008
Fifteenth Report
Report of the
Examiner of Statutory Rules
to
the Assembly
and
the Appropriate Committees
9 May 2008
| Committee for Agriculture and Rural Development | S.R. 2008 No. 183, 184, 186 |
| Committee for Finance and Personnel | S.R. 2008 No. 191 |
| Committee for Health, Social Services and Public Safety | S.R 2008 No. 163 |
| Committee for Regional Development | S.R. 2008 Nos. 143, 182 |
| Committee for Social Development | S.R. 2008 Nos. 132, 144, 145, 178, 179 |
NIA 142/07-08
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.".
Corrigendum to Fourteenth Report of Session 2007 – 2008
3. The Fourteenth Report of the Examiner of Statutory Rules of Session 2007 – 2008 (11 April 2008) incorrectly listed the Occupational Pension Schemes (Levy Ceiling) Order (Northern Ireland) 2008 (S.R. 2008/144) as being subject to the approval of the Assembly (confirmatory procedure), whereas the Order is subject to negative resolution: they were in breach of the 21-day rule as satisfactorily explained. The Occupational Pension Schemes (Levies) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/145) were incorrectly listed as being subject to negative resolution and were reported as in breach of the 21-day as satisfactorily explained, whereas the Regulations were subject to the approval of the Assembly (confirmatory procedure). Both statutory rules are correctly listed in the Appendix to this report.
Statutory rules to which attention is drawn in this report
The OCCUPATIONAL PENSION SCHEMES (EMPLOYER DEBT AND MISCELLANEOUS AMENDMENTS) Regulations
(Northern Ireland) 2008 (S.R. 2008/132)
The OCCUPATIONAL PENSION SCHEMES (EMPLOYER DEBT: APPORTIONMENT ARRANGEMENTS) Regulations
(Northern Ireland) 2008 (S.R. 2008/178)
4. I draw the attention of the Committee for Social Development and the Assembly to the Occupational Pension Schemes (Employer Debt and Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/132) and the Occupational Pension Schemes (Employer Debt: Apportionment Arrangements) Regulations (Northern Ireland) 2008 (S.R. 2008/178) 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 or 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), explained by the Department for Social Development.
5. S.R. 2008/132 was made on 18 March 2008, laid on 19 March 2008 and came into operation on 6 April 2008. The corresponding Regulations for Great Britain (contained in S.I. 2008/731) were made on 12 March 2008 and contained a number of late drafting changes, which the Department had to consider; officials worked through the St Patrick’s weekend, found a number of infelicities in the Regulations for Great Britain (which they discussed with the Department for Work and Pensions) and made the Regulations on 18 March 2008. That explanation seems to be very reasonable.
6. S.R. 2008/178 was made on 17 April 2008 (following consideration by the Committee of the proposed Regulations that day), laid the same day and came into operation on 18 April 2008. (The corresponding Regulations for Great Britain, contained in S.I. 2008/1068, were made on 11 April 2008, laid on 14 April 2008 and came into force on 15 April 2008.) The Regulations were intended to close a possible loophole (unintended) resulting from the earlier Regulations. Again, it seems to me that the Department’s explanation is reasonable.
THE HEALTH AND PERSONAL SOCIAL SERVICES
(SUPERANNUATION) (AMENDMENT) REGULATIONS
(NORTHERN IRELAND) 2008 (S.R. 2008/163)
7. I draw the attention of the Committee for Health, Social Services and Public Safety and the Assembly to the Health and Personal Social Services (Superannuation) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/163) on the ground that the Regulations do not conform to established legislative practice in one respect, acknowledged by the Department.
8. The intention of these Regulations is to extensively revise, by textual amendment, the principal Regulations (first made in 1995 and amended fifteen times subsequently) in respect of members employed in Health and Personal Social Services before 1 April 2008. The matter to which I draw attention is that the Regulations set out to change the term "HPSS employment" to "HSC employment". The Regulations contain a provision inserted into the principal Regulations thus:
" (4) After regulation 2 [of the principal Regulations] insert—
"(2A) For the words "HPSS employment" in every place where they occur substitute "HSC employment".".
Leaving aside the obvious point that the provision is drafted as a paragraph (whereas a whole regulation 2A. is what is actually intended), the difficulty with the provision is that it has set a non-textual (or referential) amendment into the very text it seeks to amend. It seems to me that the Department (avowedly through time pressures in finalising the Regulations) has conflated two distinct drafting methods: either it could have framed a non-textual amendment as part of the amending Regulations themselves without actually inserting provision into the text of the principal Regulations; or (and this would have been preferable), it could have textually amended each and every reference to "HPSS employment" in the principal Regulations. I understand that the Department is considering the textual amendment approach and that a reasonably early opportunity for further amendments (taking effect from 1 April 2008 under the relevant powers in the Superannuation (Northern Ireland) Order 1972) is likely to present itself: I would commend this approach to the Department. I report accordingly.
THE FISH HEALTH (AMENDMENT) REGULATIONS
(NORTHERN IRELAND) 2008 (S.R. 2008/183)
9. I draw the attention of the Committee for Agriculture and Rural Development and the Assembly to the Fish Health (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/183) on the ground that they were laid in breach of the 21-day rule, explained by the Department of Agriculture and Rural Development.
The Regulations were made on 22 April 2008 and came into operation on 23 April 2008; they were laid on 23 April 2008. The Department has explained that these were emergency Regulations to prevent the spread of the shellfish disease Bonamia from Strangford Lough to other parts of Northern Ireland: it was necessary to bring the Regulations into operation quickly to prohibit movements of molluscs, eggs or gametes from Strangford Lough without authorisations to do so. It seems to me that the Department’s explanation is reasonable.
THE SEED POTATOES (CROP FEES) (AMENDMENT) REGULATIONS
(NORTHERN IRELAND) 2008 (S.R. 2008/184)
10. I draw the attention of the Committee for Agriculture and Rural Development and the Assembly to the Seed Potatoes (Crop Fees) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/184) on the ground that they were laid in breach of the 21-day rule, explained by the Department of Agriculture and Rural Development.
The Regulations were made on 23rd April 2008, laid on 24 April 2008 and came into operation on 1 May 2008. The Department has explained that it brought the Regulations into operation on 1 May 2008 in order to give farmers more time to pay under the "usual" fee before the "late" fee comes into effect (after 30 May). The Department, I understand, indicated its proposed timing to the Committee when it submitted the proposed Regulations. It seems to me that its explanation is reasonable.
W G Nabney
Examiner of Statutory Rules
9 May 2008
APPENDIX
(The attention of the appropriate Committees and the Assembly is drawn to those statutory rules marked in bold)
Statutory rule subject to affirmative resolution
The Donaghadee (Harbour Area) Order (Northern Ireland) 2008 (S.R. 2008/143)
Statutory rule subject to approval of the Assembly (confirmatory procedure)
The Occupational Pension Schemes (Levies) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/145)
Statutory rules subject to negative resolution
The Occupational Pension Schemes (Employer Debt and Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/132)
The Occupational Pension Schemes (Levy Ceiling) Order (Northern Ireland) 2008 (S.R. 2008/144)
The Health and Personal Social Services (Superannuation) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/163)
The Occupational Pension Schemes (Employer Debt: Apportionment Arrangements) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/178)
The Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2008 (S.R. 2008/179)
The Bann Road, Ballymoney (Abandonment) Order (Northern Ireland) 2008 (S.R. 2008/182)
The Fish Health (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/183)
The Seed Potatoes (Crop Fees) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/184)
The Financial Assistance for Young Farmers Scheme (Amendment) Order (Northern Ireland) 2008 (S.R. 2008/186)
The Whole of Government Accounts (Designation of Bodies) Order (Northern Ireland) 2008 (S.R. 2008/191)