SESSION 2001 - 2002

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

(listed below)

DATED 16 MAY 2002

Agriculture and Rural Development Committee

(S.R. 2002 Nos. 151, 161 and 162)

Environment Committee

(S.R. 2002 No. 154)

Health, Social Services and Public Safety Committee

(S.R. 2002 Nos. 129, 136, 140, 141 and 144 )

Regional Development Committee

(S.R. 2002 No. 143)

Social Development Committee

(S.R. 2002 Nos. 132 and 164)

1. 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.
2. All of the statutory rules considered in this report, except S.R. 2002 No. 164 (the Social Security and Child Support (Miscellaneous Amendments) Regulations (Northern Ireland) 2002), are subject to negative resolution; S.R. 2002 No. 164 is subject to the confirmatory procedure.
3. I draw the attention of the Assembly and the Health, Social Services and Public Safety Committee to the Personal Social Services (Preserved Rights) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 136) on the ground that they were laid after they came into operation: the Regulations were made on 29 March 2002 and came into operation on 8 April 2002; they were was not laid until 24 April 2002, when the printed copies became available. The Department was under pressure to make the Regulations so that they came into operation on 8 April 2002, and Royal Assent in respect of the parent legislation was not received until 26 March 2002; and the following week was Easter week. When I asked the Department for an explanation as to why it had not followed the guidance about laying in typescript or proof form in appropriate cases such as this where time was tight it explained thus by the responsible officer-

"At this stage the only comment I can make is to apologise for the fact that we did not pick up the reference in the Guidance to that fact that we could have laid the Regulations in proof or typescript form. This was due mainly to the extreme haste with which all aspects of this Bill [that is to say, the Bill which was enacted as the Personal Social Services (Preserved Rights) Act (Northern Ireland) 2002] were handled in order to meet a very pressing deadline.".

I merely reiterate that there is guidance about laying in typescript or proof form in appropriate cases so as to ensure that in all but exceptional cases statutory rules are laid before they come into operation. I draw attention to the Regulations accordingly.

4. I draw attention of the Assembly and the Regional Development Committee to the Traffic Signs (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 143) on the ground that they are defectively drafted in one respect as acknowledged by the Department for Regional Development. Regulation 2(d) inserts a new traffic sign (traffic calmed area), numbered as diagram 674.1, into Schedule 2 to the Traffic Signs Regulations (Northern Ireland) 1997 (regulatory signs) after diagram 674 (20 mph speed limit). It seemed to me that the new diagram was intended to be a warning sign (bounded as it was by a red triangle base downwards) and that, as such, it should have been appropriately placed in Schedule 1 to the 1997 Regulations (warning signs). The Department has indicated that it intends to make an appropriate amendment relocating the diagram to Schedule 1 in the next amending Regulations. I draw attention to the Regulations accordingly.
5. I draw the attention of the Assembly and the Agriculture and Rural Development Committee to the Medicated Feedingstuffs (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 161) and the Feedingstuffs (Zootechnical Products) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 162) on the grounds that the form of their making appears to be irregular in two respects and that they were laid after they came into operation.
6. As regards the making of the Regulations, the first point is that the italics on the first page indicate that they were made on 23 April 2002; whereas the sealing at the end suggests on the face of the Regulations that they were made on 24 April 2002. The Department has explained to me that the Regulations were in fact signed by the Minister on 23 April 2002. It seems from what the Department has told me that the seal was in fact placed on the Regulations on 24 April 2002. And that brings me to the second point. It is this. In the case of these Regulations the Minister, it seems from the Recital of Powers, was making the Regulations in her capacity as Minister of Agriculture and Rural Development under a Designation Order (S.I. 2000/2812) made under section 2(2) of the European Communities Act 1972: that is to say, the Minister was exercising a power vested in her qua Minister rather than a power vested in the Department as such; and so she was not exercising functions of the Department as envisaged by Articles 4(3)(a) and 6(2) of the Departments (Northern Ireland) Order 1999. Accordingly, in strict terms, the Regulations were not made in a wholly appropriate form: the Regulations should not in this case have been sealed but merely signed by the Minister and dated. I draw attention to the irregularities in the making of these regulations accordingly. Having said that, it seems to me that these irregularities in form do not affect the validity of the Regulations themselves. But clearly Departments need to take care. In the many cases where it is necessary and appropriate to apply the Department's official seal, then no doubt the oft-cited maxim omnia praesumuntur rite [et solemniter] esse acta (all things are presumed to have been done correctly [and solemnly]), as given statutory expression in this context in Article 7(1) of the Departments Order, applies; but the intention in Article 6(2) of the Departments Order surely remains that the Minister or senior officer is authenticating the application of the seal; so, strictly, the Minister or senior officer should sign when the seal is applied.
7. The Regulations were laid after they came into operation: they were made on 23 April 2002 and came into operation on 25 April 2002; they were laid on 25 April 2002. But I am satisfied with the explanation that there was an urgency to bring them into operation; and that the arrangements were further complicated by the fact that the officer responsible for their handling was unfortunately on sick leave around the time when they were made. I draw attention to the laying of the Regulations accordingly.
8. 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

16 May 2002

APPENDIX

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

The Health and Personal Social Services (Superannuation) (Additional Voluntary Contributions) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 129)

The Social Security (Amendment) (Residential Care and Nursing Homes) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 132)

The Personal Social Services (Preserved Rights) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 136)

Food (Figs, Hazelnuts and Pistachios from Turkey) (Emergency Control) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 140)

Food (Jelly Confectionery) (Emergency Control) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 141)

Traffic Signs (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 143)

Adoption of Children from Overseas Regulations (Northern Ireland) 2002

(S.R. 2002 No. 144)

Milk Marketing Board (Residuary Functions) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 151)

Motor Vehicles (Third-Party Risks) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 154)

Medicated Feedingstuffs (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 161)

Feedingstuffs (Zootechnical Products) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 162)

The Social Security and Child Support (Miscellaneous Amendments) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 164)