Twelfth Report, Examiner of Statutory Rules, Northern Ireland Assembly

SESSION 2001 - 2002

TWELFTH REPORT OF THE EXAMINER OF STATUTORY RULES
TO
THE ASSEMBLY
AND
THE APPROPRIATE COMMITTEES

(listed below)

DATED 26 APRIL 2002

Agriculture and Rural Development Committee

(S.R. 2002 No. 125)

Employment and Learning Committee

(S.R. 2002 Nos. 111, 112 and 120)

Environment Committee

(S.R. 2002 Nos. 94, 115 and 116)

Health, Social Services and Public Safety Committee

(S.R. 2002 Nos. 82, 113 and 121)

Social Development Committee

(S.R. 2002 Nos. 127 and 128)

In accordance with the revised delegations under Standing Order 41 given to the Examiner of Statutory Rules by the appropriate Committees in October and November 2001, I submit my report on the statutory rules listed in the Appendix. At the same time, I am sending a copy of this report to each of the Departments concerned.
All of the statutory rules considered in this report are subject to negative resolution.
I draw the attention of the Assembly and the Committee to the Food (Star Anise from Third Countries) (Emergency Control) Order (Northern Ireland) 2002 (S.R. 2002 No. 82) on the grounds that the Order is defectively drafted in one respect and that it was laid after it came into operation.
The drafting defect has been identified, in respect of the corresponding Order for England (S.I. 2002/334), by the Joint Committee of both Houses of Parliament on Statutory Instruments in its Twenty-fourth Report for the Session 2001-2002 (26 March 2002) as follows-

"8. Article 3(1) of this Order prohibits a person from importing into England any Star Anise for human consumption which has been consigned from a country which is not a member State, except in accordance with the conditions in Article 1.1 and the second sentence of Article 1.2 of the Commission Decision. That sentence requires Member States to ensure that the importers are obliged to give prior notice to the competent authorities at the point of entry into the Community specifying the amount, nature and estimated time of arrival of the consignment. Since the Order does not in terms specify the competent authority in England for this purpose, the Committee asked the Food Standards Agency to explain who is the competent authority and why this is not specified in the Order. In a memorandum printed in Appendix 3, the Agency explains that the Order was drafted on the assumption that it would be understood that the competent authority for the purposes of the Commission Decision is the food authority under the Imported Food Regulations 1997 (S.I. 1997/2537). Those Regulations impose controls on the import of certain foods (namely foods of non-animal origin not in free circulation within the Community) and provide for each "food authority" to enforce and execute the Regulations within its area: in England, the food authorities are port health authorities or, where none, the relevant local authority. However, the Agency accepts that the Order should have expressly identified the competent authority, and indicate that the Order will be amended. In the Committee's view, the failure to include an express provision in the Order to identify the competent authority constitutes defective drafting..".

The Food Standards Agency has accepted the point for England. The same point arises in the Order for Northern Ireland, it seems: the competent authority should be expressly identified. I draw attention to the Order accordingly on the ground that it is defectively drafted in one respect as identified by the Joint Committee in relation to the corresponding Order for England.

The Order was laid after it came into operation: it was made on 6 March 2002 and came into operation on 7 March 2002; it was not laid until 26 March 2002 (whereas the corresponding Orders for England and Scotland were laid shortly before they came into force). I asked the Food Standards Agency for an explanation. It seems that the Food Standards Agency was not aware of the guidance about laying in typescript or proof form and I ask the Department of Health, Social Services and Public Safety (since the Department rather than the Agency is the rule-making authority in this case), and indeed Departments generally, to take note; as it happens, I will be raising this point in a forthcoming report in relation to another statutory rule made by the Department of Health, Social Services and Public Safety at the end of last month and laid this week - almost two weeks after it came into operation; it may be that the guidance on laying has not been disseminated in that Department and associated bodies as fully as it should have been; the guidance certainly does not seem to have reached the Food Standards Agency. I draw attention to the Order accordingly.
I draw the attention of the Assembly and the Employment and Learning Committee to the Students Awards (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 112) on the ground that they were laid after they came into operation: they were made on the 15 March 2002 and came into operation on 8 April 2002; they were laid on 11 April 2002. The Department for Employment and Learning was at first adamant that it had laid these Regulations on 15 March, but what seems to have happened was as follows, taking together the varying accounts from the Department, the Committee Office and the Business Office: on 15 March the Department hand delivered two envelopes, one addressed to the Business Office and the other addressed to the Committee Office; the envelope addressed to the Committee Office contained copies of these Regulations as well as copies of S.R. 2002 No. 111; but, alas, the envelope addressed to the Business Office contained only copies of S.R. 2002 No. 111. Something rather similar seems to have happened several years ago, in the time of my predecessor (Mr P L Oakey OBE), who commented-

"Whatever the reason for the Rule going astray I think the proper procedure for the laying of statutory rules is that a responsible person should take the necessary copies to the Business Office during office hours on a working day and obtain a receipt from a responsible person in that office.". [Report dated 14 September 2001; NIA 22/01 at page 9]

There is something to be said for following Mr Oakey's direction in this matter. I draw attention to the Regulations accordingly.

I draw the attention of the Assembly and the Social Development Committee to the Occupational and Personal Pension Schemes (Bankruptcy) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 127) and the Social Security (Miscellaneous Amendments) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 128) on the ground that they breach the 21-day rule (that is to say, the long-established rule of practice whereby the rule-making authority in the case of a statutory rule subject to negative resolution should generally allow 21 days between the laying of the statutory rule and its coming into operation). S.R. 2002 No. 127 was made on 27 March 2002, was laid on the same day, and came into operation on 6 April 2002; S.R. 2002 No. 128 was made on 27 March 2002, was laid on the same day, and came into operation on 8 April 2002. In both cases the Department for Social Development has explained the breaches on the basis of parity with the corresponding Regulations for Great Britain; and in both cases the Department made the Regulations within a day of the Regulations for Great Britain, which also appear to have been in breach of the 21-day rule to instruments laid before Parliament under the negative procedure there. I draw attention to the Regulations accordingly on the ground that they breach the 21-day rule as explained by the Department for Social Development.
Subject to the points set out in paragraphs 3 to 7, there is nothing in the statutory rules covered by this report that requires to be brought to the special attention of the Assembly and the appropriate Committees under any of the grounds mentioned in Standing Order 41(5).

W G Nabney

Examiner of Statutory Rules

26 April 2002

APPENDIX

(The attention of the Assembly and the appropriate Committee is drawn to the statutory rule marked in bold )

Food (Star Anise from Third Countries) (Emergency Control) Order (Northern Ireland) 2002 (S.R. 2002 No. 82)

The Air Quality Limit Values Regulations (Northern Ireland) 2002 (S.R. 2002 No. 94)

The Education (Student Support) (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 111)

Students Awards (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 112)

The Health and Personal Social Services (Assessment of Resources) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 113)

Local Government Pension Scheme (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 115)

Road Service Licensing (Community Licences) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 116)

Labour Relations Agency Arbitration Scheme Order (Northern Ireland) 2002

(S.R. 2002 No. 120)

The Child Support (Great Britain Reciprocal Arrangements) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 121)

Plant Protection Products (Amendment) (No. 2) Regulations (Northern Ireland) 2002