Report of the
Examiner of Statutory Rules
the Appropriate Committees
23 May 2008
|Committee for Agriculture and Rural Development||S.R. 2008 Nos. 185, 194, 194, 197|
|Committee for the Environment||S.R. 2008 No. 196|
|Committee for Finance and Personnel||S.R. 2008 No. 170; Draft SR: The Companies (Public Sector Audit) Order ( Northern Ireland) 2008|
|Committee for Health, Social Services and Public Safety||S.R 2008 Nos. 167, 188, 192, 193|
|Committee for Regional Development||S.R. 2008 Nos. 204, 206|
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)). They 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 PLASTIC MATERIALS AND ARTICLES IN CONTACT WITH FOOD REGULATIONS (NORTHERN IRELAND) 2008 (S.R. 2008/167)
3. I draw the attention of theCommittee for Health, Social Services and Public Safety and the Assembly to the Plastic Materials and Articles in Contact with Food Regulations (Northern Ireland) 2008 (S.I. 2008/167) on the ground that they are defectively drafted in one respect, acknowledged by the Food Standards Agency.
4.I drew the attention of the Food Standards Agency to the 16th Report of the Subordinate Legislation Committee of the Scottish Parliament 2008 (Session 3) dated 24 April 2008: http://www.scottish.parliament.uk/s3/committees/subleg/reports-08/sur08-16.htm . That report drew attention to a reference in the corresponding Regulations for Scotland (contained in S.S.I 2008/127) to “Ref No. 33640” in a complex and involved transitional provision (regulation 19(3)(a)(i) of the Scottish Regulations; regulation 21(3)(a)(i) of the these Regulations for Northern Ireland) purporting to list lids containing a gasket of specifications contained in the Annex to Commission Regulation (EC) 372/2007: that particular Regulation did not appear in the Annex to the Regulation. The Subordinate Legislation Committee asked the Food Standards Agency to explain whether the erroneous reference affected the proper transposition of the transitional provision made at Article 3.1(b) of Directive 2007/19/EC.
5. I will not attempt to paraphrase or summarise the Subordinate Legislation Committee’s report (to which I have included a hyperlink, above): I will simply refer to the Committee’s doubt, which it considered was not fully answered, raised by the addition of the erroneous reference – whether it affects the proper transposition of the transitional provisions made at Article 3.1(b) of Directive 2007/19/EC for lid gaskets made of azodicarbonamide in that the transitional provisions made in respect of its use prior to 1 July 2008 do not properly apply; and whether other transitional provision requires to be made in respect of such a gasket for that period. But in light of the Committee’s doubts on the Scottish Regulations I raised the matter with the Food Standards Agency in Northern Ireland.
6. The Food Standards Agency has sent me an explanation: again I will simply record it, but it seems that, when corrected, the apparent transitional problem as perceived by the Subordinate Legislation Committee may have been resolved. There was an error, which will in be corrected in amending Regulations, in regulation 21(3)(a)(i) in referring to the restrictions and specifications for Ref. No. 36640 as being contained in the Annex to Regulation (EC) 372/2007. The correct reference should have been to Directive 2002/17/EC as amended by Directive 2007/19/EC: that requires a ban from 1 July 2008 on the use of Ref. No. 36640 in the manufacture of lid gaskets and on the import of gaskets containing Ref. No. 36640. A ban on the use, import and placing on the market of Ref. No. 36640 had already been imposed from 2 August 2005 (addressing to some extent at least, it seems, the doubt raised by the Subordinate Legislation Committee’s Report, which I have marked in italics above), save for the placing on the market of such Articles filled before that date: Directive 2002/17/EC. That is as far as I can take the matter and I report accordingly.
THE ENERGY PERFORMANCE OF BUILDINGS (CERTIFICATES AND INSPECTIONS) REGULATIONS (NORTHERN IRELAND) 2008 (S.R. 2008/170)
7. I draw the attention of theCommittee for Finance and Personnel and the Assembly on the ground that they are defectively drafted in several respects, acknowledged by the Department of Finance and Personnel.
The Department is working on early amending Regulations, which will, I understand, be in place to meet the commencement provisions of these Regulations.
8. First, Regulation 18 refers to the date “4th January 2012”. In light of the timetable for the implementation of Article 9 of Directive 2002/91/EC of the European Parliament and of the Council laid down in Article 15 of the Directive, I queried whether this should have been “4th January 2011”.
The Department has explained that this was an oversight and that it will be corrected in the amending Regulations.
9. Second, Article 31(1) and (3) defines the enforcement authority for the purposes of the Part 6 of the Regulations in the following terms:
“31. —(1) The enforcement authority for the purposes of this Part shall be
(a) the Department; or
(b) as regards any local government district designated by the Department, a person authorised in writing by the Department.
(3) In this regulation “local government district” has the same meaning as in section 1 of the Local Government Act ( Northern Ireland) 1972.”.
I see some potential difficulties with that provision as drafted in the context of the Regulations. The Department is the primary enforcement authority on the face of the Regulations, yet there is scope for enforcing the Regulations in relation to, say, government buildings: regulation 41 provides for application to the Crown; regulation 41(2) allows the enforcement authority to take proceedings in the High Court for a declaration in the High Court that an act or omission of the Crown constitutes a contravention of the Regulations. Leaving aside the intricacies of the doctrine of “the indivisibility of the Crown” and the scope of its application to Northern Ireland departments, it seemed to me that that proposition was problematic. It must be obvious that the Department cannot take enforcement proceedings against itself (in relation, say, to a government office). Equally, if, as I understand it, the intention behind regulation 31(1)(b) was to devolve enforcement functions onto district councils, a district council cannot take enforcement action against itself, say, in relation to a local government office: again, that is obvious when one analyses the proposition. So it seems to me the provision should spell out to some extent at least the appropriate enforcement authority, particularly in light of the duties on public authorities contained in Article 7 of Directive 2002/91/EC, as transposed in regulation 11(1). Accordingly, I have suggested to the Department something along the following lines:
“ 31. — (1) The enforcement authority for the purposes [these Regulations – this surely goes to the whole of the Regulations rather than to Part 6] shall be─
(a) except in relation to duties under these Regulations enforceable against a district council, a district council within its district;
(b) in relation to duties under these Regulations enforceable against a district council, the Department.”.
In practical terms the prospect of enforcement action as between public authorities is probably remote, and one would generally expect public authorities to comply with their statutory obligations. Having said that, the Regulations, transposing the Directive, are very much framed in terms of enforceable duties. So, as I have said, it seems better to spell out to some extent on the face of the Regulations the appropriate enforcement authorities so as to avoid any appearance of potential conflicts of interest as between public authorities as enforcement authorities on the one hand and authorities subject to enforceable duties under the Regulations on the other hand: this is a rather unusual position, it seems to me; but it is one that seems to arise in these Regulations. I understand that the Department is content to take this on board in the amending Regulations, which will be made shortly.
10. And, third, in regulation 40 (offence of obstruction of an officer of an enforcement authority), there is an erroneous cross-reference to “regulation 28”: plainly, the reference was intended to be a reference to “regulation 32”. Provisions relating to criminal offences need to be drafted with particular care and should be construed strictly. TheDepartment intends to correct this in the amending Regulations which will be made shortly. The Department has also picked up several other drafting points, and these will also be dealt with in the amending regulations. I report accordingly.
THE TRANSMISSIBLE SPONGIFORM ENCEPHALOPATHIES REGULATIONS (NORTHERN IRELAND) 2008 (S.R. 2008/188)
11. I draw the attention of theCommittee for Health, Social Services and Public Safety and the Assembly to the Transmissible Spongiform Encephalopathies (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/188) on the ground that they were laid in breach of the 21-day rule, explained by the Food Standards Agency - an explanation that appears to be reasonable .
The Regulations were made on 24 April 2008, were laid on 25 April and came into operation on 26 April 2008. The relevant Community Regulation came into operation on 26 April 2008, three days after its publication in the Official Journal, and becomes binding on member States from that day.
THE COMMON ARGRICULTURAL POLICY SINGLE PAYMENT AND SUPPORT SCHEMES (AMENDMENT) REGULATIONS (NORTHERN IRELAND) 2008 (S.R. 2008/194)
12. I draw the attention of theCommittee for Agriculture and Rural Development and the Assembly to the Common Agricultural Policy Single Payment and Support Schemes (Amendment) Regulations (Northern Ireland) (S.R. 2008/194) on the ground that are defectively drafted in one respect, acknowledged by the Department of Agriculture and Rural Development.
Regulation 4(b) substitutes a new regulation 2(4) in the principal Regulations to that any reference in regulation 2(2) to a Community instrument is a reference to that instrument as amended from time to time: that is what is known as an “ambulatory” reference. The Department has acknowledged that, when using this formula, it should have recited in the recital of powers or preamble the exercise of the power set out in paragraph 1A of Schedule 2 to the European Communities Act 1972. I am satisfied that this drafting defect is not such as would affect the validity of new regulation 2(4).
W G Nabney
Examiner of Statutory Rules
23 May 2008
(The attention of the appropriate Committees and the Assembly is drawn to those statutory rules marked in bold )
Draft statutory for approval by resolution of the Assembly
The Companies (Public Sector Audit) Order ( Northern Ireland) 2008
Statutory rules subject to negative resolution
The Plastic Materials and Articles in Contact with Food Regulations ( Northern Ireland) 2008 (S.R. 2008/167)
The Energy Performance of Buildings (Certificates and Inspections) Regulations ( Northern Ireland) 2008 (S.R. 2008/170)
The Unlicensed Fishing for Crabs and Lobster Regulations ( Northern Ireland) 2008 (S.R. 2008/185)
The Transmissible Spongiform Encephalopathies (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/188)
The European Qualification (Pharmacy) Regulations ( Northern Ireland) 2008 (S.R. 2008/192)
Registration of Pharmaceutical Chemists (Exempt Persons) Regulations ( Northern Ireland) 2008 (S.R. 2008/193)
The Common Agricultural Policy Single Payment and Support Schemes (Amendment) Regulations ( Northern Ireland) (S.R. 2008/194)
The Nitrates Action Programme (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/196)
The Avian Influenza (Miscellaneous Amendments) Regulations ( Northern Ireland) 2008 (S.R. 2008/197)
The College Park Avenue, Belfast (Footpath) (Abandonment) Order ( Northern Ireland) 2008 (S.R. 2008/204)
The Old Carrick, Newtownabbey (Abandonment) Order ( Northern Ireland) 2008 (S.R. 2008/206)