FIRST REPORT

OF THE

EXAMINER OF STATUTORY RULES

during the suspension of
the Northern Ireland Assembly
from 15 October 2002
16 December 2002
BELFAST: The Stationery Office

Terms of reference

1. I make this Report to the Secretary of State for Northern Ireland under the authority of directions given by the Secretary of State on 13 November 2002 to continue the technical scrutiny during the suspension of the Northern Ireland Assembly under the Northern Ireland Act 2000 (which took effect from 15 October 2002) and to report to the Secretary of State from time to time. My terms of reference expressly refer to statutory rules subject to negative resolution or confirmatory procedure; statutory rules subject to affirmative resolution and statutory rules subject to approval in draft by a resolution of the Assembly are in effect translated by the provisions of the 2000 Act into statutory rules subject to annulment in pursuance of a resolution of either House of Parliament (and as such come under the scrutiny of the Joint Committee on Statutory Instruments at Westminster).

2. Technical scrutiny is a convenient shorthand expression intended to cover the matters set out in Assembly Standing Order 41(6) under which I operate when assisting the Assembly and its Committees in the scrutiny of statutory rules and draft rules laid before it. Standing Order 41(6) is in the following termsó

"(6) In scrutinising an instrument the appropriate Committee [in practice the Examiner of Statutory Rules under delegations from the Committees under Standing Order 41(4)(b) ó words added by the Examiner] 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 an 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 covered in this report

3. This Report covers some statutory rules laid before the Assembly prior to its suspension on 15 October 2002: these are listed in paragraphs 4 to 8 and Appendix 1. It also deals with statutory rules laid before the Assembly during the first month or so of its suspension on 15 October: these are listed in paragraphs 9 to 11 and Appendix 2.

Controlled Waste (Duty of Care) Regulations (Northern Ireland) 2002 (S.R. 2002/271)

4. I draw attention to the Controlled Waste (Duty of Care) Regulations (Northern Ireland) 2002 (S.R. 2002/271). I wrote to the Department of the Environment of 23 September 2002, raising some points about regulation 5 (amendment of the Controlled Waste Regulations (Northern Ireland) 2002) in addition to, and expanding on, a point I had raised on that regulation by e-mail on 9 September 2002 following the laying of these Regulations on 5 September 2002.The Department and its legal advisers are considering my points. I will return to the Regulations in my next report early in 2003, by which time I should have the Departmentís concluded observations. (These Regulations were laid before the Assembly prior to its suspension.)

Bovines and Bovine Products (Trade) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/278)

5. I draw attention to the Bovines and Bovine Products (Trade) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/278) on the ground that the Regulations are defectively drafted and in need of early consolidation. The Department of Agriculture and Rural Development intended to amend the Bovines and Bovine Products (Trade) Regulations (Northern Ireland) 1999 (S.R. 1999/308) by means of textual amendments. And all went well until it came to substituting for the existing Schedules 1 to 3 to the 1999 Regulations new Schedules 1 to 3 to those Regulations: that was plainly the Departmentís intention. But what the Department actually did in regulation 3(8) was to provide tható

"(8) Schedules 1 to 3 [to the 1999 Regulations] shall be replaced by Schedules 1 to 3 of (sic) these Regulations [that is, Schedules 1 to 3 to the 2002 amending Regulations].".

The result is that Schedules 1 to 3 are in effect now part of the 2002 amending Regulations, while Schedule 4 remains in the 1999 Regulations. What the Department should have done was to have substituted new Schedules 1 to 3 to the 1999 Regulations as textual amendments set out in one Schedule to the 2002 amending Regulations, so that the new Schedules were clearly framed as substituted Schedules to the 1999 Regulations. I suggested to the Department that it might perhaps have corrected the defect in further amending Regulations before the 2002 amending Regulations came into operation, but the Department did not take up this suggestion, and admittedly it had at that stage very little time to make the correction.

So the result was messy and I cannot agree with the comment from the Department tható

"[W]e feel that this [the substitution of the new Schedules] has been satisfactorily achieved in this case.".

I note with approval from the Departmentís response that it intends to consolidate the 1999 Regulations with these and other amendments to date. Plainly, the sooner that is done the better. Accordingly, I draw attention to the Bovines and Bovine Products (Trade) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/278) on the ground that the Regulations are defectively drafted and in need of early consolidation. (These Regulations were laid before the Assembly prior to its suspension.)

Plant Health (Wood and Bark) (Amendment) Order (Northern Ireland) 2002 (S.R. 2002/285)

6. I draw attention to the Plant Health (Wood and Bark) (Amendment) Order (Northern Ireland) 2002 (S.R. 2002/285) on the ground that the Regulations breach the 21-day rule (that is to say, the long-established rule of practice applicable to statutory rules subject to negative resolution whereby the rule-making authority should allow at least 21 days between the laying of the statutory rule and its coming into operation): the Regulations were made on 16 September 2002, were laid on the same day and came into operation on 23 September 2002. The Department of Agriculture and Regional Development explained the breach thusó

"The latest directives were adopted by the European Commission on 19 March 2002 with a requirement that the provisions should be incorporated [transposed] into national law by 1 April 2002. Legislation giving effect to these in GB came into force on 26 April 2002. In response to an "Article 226" letter from the Commission, the first formal stage of the infraction process, the Department gave a commitment that the Directives would be transposed into NI legislation and come into operation on 23 September 2002.

Due primarily to resource difficulties within the Departmental Solicitorís Office I regret that it has not been impossible to finalise, make and lay this SR before now, which is in breach of the "21 day rule". To help ameliorate this a typescript copy, registered with the Statutory Publications Office, is attached for laying.".

I will leave that explanation without further comment, except to say that the undertaking given to the European Commission seems to have concentrated minds in the Department at the eleventh hour, as such undertakings plainly do. (These Regulations were laid before the Assembly prior to its suspension.)

Food (Peanuts from China) (Emergency Control) Regulations (Northern Ireland) 2002 (S.R. 2002/293)

Food (Figs, Hazelnuts and Pistachios from Turkey) (Emergency Control No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002/307)

7. I draw attention to the Food (Peanuts from China) (Emergency Control) Regulations (Northern Ireland) 2002 (S.R. 2002/293)and the Food (Figs, Hazelnuts and Pistachios from Turkey) (Emergency Control No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002/307) on the ground that the Regulations breach the 21-day rule: S.R. 2002/293 was made on 19 September 2002, was laid on 20 September 2002 and came into operation on 23 September 2002; S.R. 2002 /307 was made and laid on 2 October 2002 and came into operation on 4 October 2002. In both cases I accept the explanation from the Food Standards Agency that it was necessary to bring the implementing Regulations into operation as soon as possible, all the more so in the case of S.R. 2002/293, in which case it was considered by the Agency that there was an imminent risk to health. The Agency pointed out, by way of comparison, that the corresponding Regulations for England were made on 11 September 2002 and came into operation on 13 September 2002. (These Regulations were laid before the Assembly prior to its suspension.)

Social Fund (Cold Weather Payments) (General) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/315)

8. I draw attention to the Social Fund (Cold Weather Payments) (General) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/315) on the ground that the Regulations (marginally) breach the 21-day rule: the Regulations were made on 8 October 2002, were laid on 11 October 2002 and came into operation on 1 November 2002. The Department for Social Development has explained that it was necessary to match the operative date for the Regulations made for Great Britain by the Secretary of State for Work and Pensions (S.I. 2002/2524, which was made on 5 October 2002 and was laid before Parliament on 10 October 2002), and I note that the Regulations were laid very promptly (in fact, within one day of the laying before Parliament of the corresponding Regulations for Great Britain). (These Regulations were laid before the Assembly prior to its suspension.)

Deregulation (Carerís Allowance) Order (Northern Ireland) 2002 (S.R. 2002/321)

Social Security (Carer Premium Amendment) Regulations

(Northern Ireland) 2002 (S.R. 2002/322)

Social Security (Carerís Allowance) (Amendment)

Regulations (Northern Ireland) 2002 (S.R. 2002/323)

9. I draw attention to the Deregulation (Carerís Allowance) Order (Northern Ireland) 2002 (S.R. 2002/321), the Social Security (Carer Premium Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/322) and the Social Security (Carerís Allowance) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/323) on the ground that the Regulations breach the 21-day rule: the Regulations were all made following Royal Assent to the Social Security Act (Northern Ireland) 2002 on 18 October 2002 so as to come into operation in part on 28 October 2002 to meet the operative date for the corresponding provisions in Great Britain. I am fully satisfied with the explanations given by the Department for Social Development and note that the Department acted very promptly in making and laying the Regulations after the enactment of the enabling primary legislation.

Social Security (Claims and Payments and Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002/327)

10. I draw attention to the Social Security (Claims and Payments and Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002/327) on the ground that the Regulations breach the 21-day rule: the Regulations were made on 23 October 2002, were laid on the same day and came into operation in part on 2 November 2002. I am fully satisfied with the explanation given by the Department for Social Development that the timing was necessary to maintain parity with the corresponding Regulations for Great Britain (S.I. 2002/2660, which was made on 22 October 2002, was laid before Parliament on 24 October 2002 and came into force in part on 2 November 2002) and note that the Department acted very promptly in making and laying the Regulations.

Water Supply (Water Quality) Regulations (Northern Ireland) 2002 (S.R. 2002/331

11. I have raised some points with the Department of the Environment on the Water Supply (Water Quality) Regulations (Northern Ireland) 2002 (S.R. 2002/331) and I will return to the Regulations in my next report.

W G Nabney

Examiner of Statutory Rules

Appendix 1

STATUTORY RULES LAID BEFORE THE NORTHERN IRELAND ASSEMBLY PRIOR TO ITS SUSPENSION

(Special attention is drawn to those statutory rules marked in bold type)

The Controlled Waste (Duty of Care) Regulations (Northern Ireland) 2002

(S.R. 2002/271)

Bovines and Bovine Products (Trade) (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002/278)

The Plant Health (Wood and Bark) (Amendment) Order (Northern Ireland) 2002 (S.R. 2002/285)

Plant Protection Products (Amendment) (No. 3) Regulations (Northern Ireland) 2002

(S.R. 2002/289)

Gas Order 1996 (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002/291)

Regulation of Investigatory Powers (Prescription of Offices, Ranks and Positions) Order (Northern Ireland) 2002 (S.R. 2002/292)

Food (Peanuts from China) (Emergency Control) Regulations (Northern Ireland) 2002 (S.R. 2002/293)

Motor Vehicles (Construction and Use) (Amendment No. 3) Regulations (Northern Ireland) 2002 (S.R. 2002/294)

The Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002/295)

Animals and Animal Products (Import and Export) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/296)

The Social Security (Claims and Payments) (Amendment No. 3) Regulations (Northern Ireland) 2002 (S.R. 2002/297)

The Social Security (Personal Injury Payments Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/299)

The Batteries and Accumulators (Containing Dangerous Substances) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/300)

The Control of Noise (Codes of Practice for Construction and Open Sites) Order (Northern Ireland) 2002 (S.R. 2002/303)

Welfare of Animals (Slaughter or Killing) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/304)

Malone Place, Belfast (Abandonment) Order (Northern Ireland) 2002 (S.R. 2002/306)

Food (Figs, Hazelnuts and Pistachios from Turkey) (Emergency Control No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002/307)

Weight and Measures (Passing as Fit for Use for Trade and Adjustment Fees) Regulations (Northern Ireland) 2002 (S.R. 2002/308)

Measuring Instruments (EEC Requirements) (Verification Fees) Regulations (Northern Ireland) 2002 (S.R. 2002/309)

The Social Fund (Cold Weather Payments) (General) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/315)

_______________________________

Appendix 2

STATUTORY RULES LAID BEFORE THE NORTHERN IRELAND ASSEMBLY DURING ITS SUSPENSION

(Special attention is drawn to those statutory rules marked in bold type)

Chemicals (Hazard Information and Packaging for Supply) Regulations (Northern Ireland) 2002 (S.R. 2002/301)

Biocidal Products (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/302)

Route U134 Balloo Road (Abandonment) Order (Northern Ireland) 2002

(S.R. 2002/310)

Isaacís Court/Charles Street South, Belfast (Abandonment) Order (Northern Ireland) 2002 (S.R. 2002/312)

Old Road, Lisburn (Abandonment and Stopping-Up) Order (Northern Ireland) 2002 (S.R. 2002/313)

Hibernia Street, Holywood (Footway) (Abandonment) Order (Northern Ireland) 2002 (S.R. 2002/314)

Plastic Material and Articles in Contact with Food (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/316)

Cloghanramer Road, Newry (Abandonment) Order (Northern Ireland) 2002

(S.R. 2002/318)

Salaries (Assembly Ombudsman and Commissioner for Complaints) Order (Northern Ireland) 2002 (S.R. 2002/320)

The Deregulation (Carerís Allowance) Order (Northern Ireland) 2002 (S.R. 2002/321)

The Social Security (Carer Premium Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/322)

The Social Security (Carerís Allowance) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/323)

Carnegie Street, Etc., Lurgan (Stopping-Up) Order (Northern Ireland) 2002

(S.R. 2002/324)

The Social Security (Claims and Payments and Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002/327)

Motor Vehicles (Exchangeable Licences) (Amendment) Order (Northern Ireland) 2002

(S.R. 2002/328)

T1 Belfast-Bangor Trunk Road (Extension) Order (Northern Ireland) 2002

(S.R. 2002/329)

T3 and T10 (Omagh Distributor Stage III) Order (Northern Ireland) 2002

(S.R. 2002/330)

The Water Supply (Water Quality) Regulations (Northern Ireland) 2002 (S.R. 2002/331)

The Income Support (General) and Jobseekerís Allowance (Amendment No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002/332)

Insolvency (Northern Ireland) Order 1989 (Amendment No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002/334)

Beef Special Premium (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002/335)

Route B72 Derry Road, Strabane (Abandonment) Order (Northern Ireland) 2002

(S.R. 2002/336)

Food Protection (Emergency Prohibitions) Order (Northern Ireland) 2002

(S.R. 2002/339)

Products of Animal Origin (Third Country Imports) Regulations (Northern Ireland) 2002 (S.R. 2002/340)

Code of Practice (Industrial Action Ballots and Notice to Employers) (Appointed Day) Order (Northern Ireland) 2002 (S.R. 2002/345)

Code of Practice (Redundancy Consultation and Procedures) (Appointed Day) Order (Northern Ireland) 2002 (S.R. 2002/346)

Code of Practice (Disciplinary and Grievance Procedures) (Appointed Day) Order (Northern Ireland) 2002 (S.R. 2002/347)

Route A34 Lisknaskea Road, Maguiresbridge (Abandonment) Order (Northern Ireland) 2002 (S.R. 2002/348)

The Northern Ireland Social Care Council (Appointments and Procedure) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/349)

The Air Quality Limit Values (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002/357)

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