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Statutory Rules FAQ

 

 

What are Statutory Rules?

Statutory Rules are a type of legislation.  

They are made by rule making bodies, usually Northern Ireland Departments, in exercise of powers granted in primary legislation (e.g. Acts of the Northern Ireland Assembly, Acts of Parliament). Statutory Rules may only be made in accordance with the powers granted in the parent legislation.

The primary legislation which grants the power is sometimes called the ‘parent’ or ‘enabling’ legislation.

Statutory Rules are sometimes referred to as subordinate legislation or secondary or delegated legislation.  They can be entitled Rules, Orders, Regulations, or Schemes.

Statutory Rules are published online at www.legislation.gov.uk and are collected and published by the Statutory Publications Office in an official annual volume.

You can find information on individual Statutory Rules that have been scrutinised by the Northern Ireland Assembly on our website.

 

How does the Assembly Scrutinise Statutory rules?

See below for more detailed explanation of what happens at each stage

When

 

Activity

Outcome

 

Before the Statutory Rule is laid

 

 

 

The Department submits its proposal to make a statutory rule to the relevant Committee, in the form of a document called an SL1 Letter

The SL1, and any associated documentation provided by the Department, is considered by the Committee

 

What form this consideration takes is a matter for the Committee to decide.


 

 

 

The relevant Committee, formally considers the Department’s proposal to make a statutory rule at a meeting of the Committee, and forms a view on whether it is content with the proposal.

 

It communicates its views to the Department, and records its views in the minutes of the meeting (called the Minutes of Proceedings).


 

When

 

Activity

Outcome

 

When the Statutory Rule is laid

 

The statutory rule is published by the Department on legislation.gov.uk

 

 

The statutory rule is sent to the relevant Committee and to the Examiner of Statutory Rules for scrutiny.

It is then listed on the Plenary Minutes of Proceedings.

 

When

 

Activity

Outcome

 

After the Statutory Rule has been laid

 

Once the statutory rule is laid, the relevant Assembly Committee and the Examiner of Statutory Rules begin their respective scrutiny processes.

 

The Examiner of Statutory Rules carries out technical scrutiny of the rule, on behalf of the Committee, under Standing Order 43 of the Northern Ireland Assembly.

 

 

The Examiner of Statutory Rules reports the Examiner's technical findings on each statutory rule to the Assembly and to the Committee itself and publishes the Examiner's report.

 

 

 

 

     

When

 

Activity

Outcome

 

After the Statutory Rule has been laid

 

 

While the Examiner of Statutory Rules is undertaking the technical scrutiny of the rule, the relevant Assembly Committee scrutinises the merits and policy behind the rule.

 

How the Committee scrutinises a Statutory Rule once it has been laid is a matter for the individual Committee to determine. Scrutiny may involve written and/or oral evidence from Departmental officials or the Minister; as well as from stakeholders and parties with an interest in the statutory rule.

 

 

 

Having completed its scrutiny, including consideration of the Examiner of Statutory Rule’s report, the relevant Committee formally considers the statutory rule at a meeting of the Committee, and forms a view on the policy aspects of the statutory rule. 

 

The Committee records its views in the minutes of the meeting (called the Minutes of Proceedings) and communicates its views to the Department.


 

 

What happens next depends on the Assembly procedure specified in the parent legislation under which the statutory rule is made.

 

When

 

Activity

Outcome

 

After the Assembly Committee and the Examiner of Statutory Rules have reported

 

Negative resolution procedure:

A statutory rule that is subject to the negative resolution procedure is made by the rule making body, usually a Department, and laid before the Assembly. It is law when its ‘comes into force’ date is reached.

 

It can be annulled by resolution of the Assembly within the ‘statutory period’.  It is then void from the date of that annulment.

 

The statutory period is set out in section 41 of the Interpretation Act (Northern Ireland) 1954. It is 30 calendar days or ten days on which the Assembly has sat after the date on which the statutory rule was laid before the Assembly, whichever is the longer. 

 

To strike down the Statutory Rule a Member of the Assembly may bring a motion to the Assembly for debate, seeking to ‘annul’ or strike down the statutory rule. 

 

This type of motion is called a Prayer of Annulment.

 

 

If the Assembly votes in favour of the motion to annul the statutory rule, the rule is struck down and, from that date, it is no longer part of the law.

 

If the Assembly votes against the motion to annul the statutory rule, it remains part of the law.


 

 

Affirmative resolution procedure:

A statutory rule which is subject to the affirmative resolution procedure is made by the rule making body, usually a Department, and laid before the Assembly.

 

It shall not come into operation unless and until approved by a resolution the Assembly.

 

To do this, the relevant Minister must bring a motion to the Assembly for debate in the Assembly Chamber.


 

 

If the Assembly votes to approve the statutory rule, it becomes part of the law and comes into force on the day specified in the text of the rule.

 

If the Assembly votes against the motion, it does not become law.

 

 

 

Draft affirmative procedure:

A statutory rule which is subject to the draft affirmative procedure is laid in draft before the Assembly by the rule making body, usually a Department. It may not be made unless and until affirmed by a resolution the Assembly.

 

To do this, the relevant Minister must bring a motion to the Assembly for debate in the Assembly Chamber.

 

If the Assembly votes against the motion, the statutory rule cannot be made.

 

If the Assembly votes in favour of the motion, the draft statutory rule can be made. It becomes part of the law and comes into force on the day specified in the text of the rule.


 

 

Confirmatory resolution procedure:

A statutory rule which is subject to confirmatory resolution procedure is made by the rule making body, usually a Department, and laid before the Assembly.

 

It ceases to have effect within a specified period provided for in the parent legislation unless approved by a resolution of the Assembly within that time.

 

To do this, the relevant Minister must bring a motion to the Assembly for debate in the Assembly Chamber.

 

 

If the Assembly votes in favour of the motion, the statutory rule remains part of the law

 

If the Assembly votes against the motion, or the Minister does not bring a motion to the Assembly within the specified time, the statutory rule ceases to have effect from that day.


 

 

What does “Laying before the Assembly” mean?

A Statutory Rule is laid before the Assembly, either after being made, or in draft, by the delivery of a copy to the Business Office of the Assembly.

Once received in the Assembly Business Office, the rule is listed in the Plenary Minutes of Proceedings, and sent to the relevant Assembly Committee and the Examiner of Statutory Rules; and a copy is sent to the Assembly Library.

 

What is the role of the Assembly Committees?

Committees have a scrutiny, policy development, and consultation role with respect to the Department with which it is associated. 

This includes the development and scrutiny of statutory rules at two key stages:  before the statutory rule is laid when the Committee considers the proposals for a statutory rule as set out in the SL1 letter, and after the statutory rule is laid when the statutory rule is sent to the Committee and the Examiner of Statutory Rules for scrutiny.

 

Committee Scrutiny before the Statutory Rule is laid: the SL1 letter

The proposal for a statutory rule is conveyed to the Committee in a letter called a SL1 letter.  The SL1 letter should provide sufficient information for the Committee to carry out an informed policy scrutiny including matters such as the powers under which the Statutory Rules is to be made, the purpose, the Assembly procedure it will be subject to and any human rights implications.

A Committee’s approach to consideration of the proposal for statutory rule at the SL1 stage is a matter for the individual Committee to determine. It may call upon officials or the Minister for an explanation of the proposals, either in writing or in oral evidence sessions held during meetings of the Committee.  The Committee may seek evidence from stakeholders, and other parties with an interest in the statutory rule.

The key issue for the Committee at this stage of the process is whether it is content with the general policy thrust of what is proposed.

 

Committee Scrutiny after the Statutory Rule is laid

Once a statutory rule has been laid, it is sent to the relevant Assembly Committee for scrutiny.

A Committee’s approach to scrutiny of a statutory rule once it has been laid is a matter for the individual Committee to determine. The Committee may request information from the Department, from officials or the Minister either in writing or in oral evidence sessions held during meetings of the Committee.  The Committee may also call for, or invite evidence from, stakeholders and parties with an interest in the statutory rule.

The key issue for the Committee at this stage of the process is whether it is content with the statutory rule and, depending on the type of Assembly control to which the rule is subject, whether it recommends to the Assembly that the rule be annulled, approved, or affirmed in the Assembly.

During this time, the Examiner of Statutory Rules carries out technical scrutiny of the statutory rule, reporting to the Committee and the Assembly.

The statutory rules considered by a Committee are listed as items of business in the Committee Agenda, available on the Business Diary.  The outcome of the Committee’s consideration of a statutory rule, or a proposal for a statutory rule (SL1 letter) recorded in the Committee’s Minutes of Proceedings, available on the Committees web page

 

 

Who is the Examiner of Statutory Rules (ESR) and what role does the ESR play in scrutinising Statutory Rules?

The Examiner of Statutory Rules assists the Assembly, and the Assembly’s Statutory Committees, in the technical scrutiny of statutory rules and draft statutory rules which are subject to procedures before the Assembly. 

This is under a formal delegation from the Committees of the Assembly. The remit of the Examiner of Statutory Rules is set out in Standing Order 43 of the Standing Orders of the Assembly.

Standing Order 43 says:

“In scrutinising an instrument the appropriate committee shall among other things 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.”

These reports are published on the Assembly website, here.

 

 

Why are some statutory rules considered in the Assembly Chamber while others are not?

Statutory rules are considered in the Assembly Chamber if they must be voted on by the Assembly in order to come into force, or continue to be in force; or if a Committee or a Member wishes to debate and vote on a motion to strike down (annul) a rule which is subject to the negative resolution procedure.

Statutory rules subject to Negative Resolution Procedure are only considered in the Assembly Chamber if a Member is seeking to strike down the statutory rule.  Other statutory rules (i.e., those subject to Affirmative, draft Affirmative, or Confirmatory procedure) must be debated and voted on in the Assembly Chamber as part of the process of making the rule, its coming into force, or remaining in force.

 

 

What are the different Assembly Procedures for Statutory Rules?

Statutory rules which are laid before the Assembly may be subject to one of the following Assembly procedures. The procedure to which any statutory rule is subject will be set out in the parent legislation.

The parent legislation is the legislation which, in any particular case, gives the Department or rule-making body the power to make the statutory rule. It will set out the circumstances in which a statutory rule may be made.

The different types of Assembly procedure are:

Negative Resolution Procedure

Affirmative Resolution Procedure

Draft Affirmative Resolution Procedure

Confirmatory Resolution Procedure

Click on the links above for more information on that each of these Assembly procedures mean.

 

 

What does it mean if a statutory rule is subject to Negative Resolution Procedure?

The procedure to which any statutory rule is subject will be set out in the parent legislation. The negative resolution procedure is the most frequently used procedure.

A statutory rule that is subject to the negative resolution procedure is made by the rule making body, often a Department, and then laid before the Assembly. It is law when its ‘comes into force’ date is reached. This is set out in the statutory rule.

During the ‘statutory period’, a Member of the Assembly may bring a motion to the Assembly for debate, seeking to strike down the statutory rule.  This type of motion is called a Prayer of Annulment.

If a Member of the Assembly brings forward a motion to annul, that is, to strike down the statutory rule, the Assembly will vote after a debate on the motion.

If the Assembly votes in favour of the motion to annul the statutory rule, the rule is struck down or annulled. It is no longer part of the law from that date.

If the Assembly votes against the motion to annul the statutory rule, the statutory rule remains part of the law.

The statutory period is set out in section 41 of the Interpretation Act (Northern Ireland) 1954. It is 30 calendar days, or ten days on which the Assembly has sat, after the date on which the statutory rule was laid before the Assembly, whichever is longest.

 

 

What does it mean if a statutory rule is subject to Affirmative Procedure?

The procedure to which any statutory rule is subject will be set out in the parent legislation.

A statutory rule which is subject to the affirmative resolution procedure is made by the rule making body, often a Department, and then laid before the Assembly.

Statutory rules subject to affirmative resolution procedure are made by the Department or rule making body before they are laid before the Assembly, but cannot come into force until they have been affirmed by a vote of the Assembly.

 The Minister of the relevant Department will bring a motion to the Assembly for debate in the Assembly Chamber in order for the Assembly to vote to affirm the statutory rule or to reject it.

If the Assembly votes in favour of the motion, the statutory rule becomes part of the law and comes into force on the day specified in the text of the rule.

If the Assembly votes against the motion, the statutory rule does not come into force.

The rule is laid with the following italicised heading at the top of the first page of the rule –

“Regulations / Order laid before the Assembly under [statutory provision] and subject to affirmative resolution procedure of the Assembly”.

When the rule has been affirmed by the Assembly it is printed again with the italicised heading removed and the date of Assembly approval inserted between the making and coming into force dates

“Affirmed by resolution of the Assembly on ….”

 

 

What does it mean if a statutory rule is subject to Draft Affirmative Procedure?

The procedure to which any statutory rule is subject will be set out in the parent legislation.

Statutory rules subject to Draft Affirmative Procedure cannot be made by the Department or rule making body, and cannot come into force, until they are approved by a vote of the Assembly. They are laid before the Assembly in draft form.

The relevant Minister will bring a motion to the Assembly for debate in the Assembly Chamber in order for the Assembly to vote to either affirm that the statutory rule can be made or to reject it.

If the Minister of the relevant Department brings forward a motion to affirm the statutory rule, the Assembly will vote after a debate on the motion.

If the Assembly votes against the motion, the statutory rule cannot be made.

If the Assembly votes in favour of the motion, the draft statutory rule can be made. It becomes part of the law when made by the Department or rule making body and comes into force on the day specified in the text of the rule.

A draft rule will not have a number when it is laid before the Assembly, and at the top of the first page, there should be printed a note in italics –

“Draft [Order][Regulations][Rules] laid before the Assembly under (statutory provision) for approval”.

When Assembly approval has been given, and before the rule is made, the rule is numbered and on the first page, above the made date the following text appears –

“Laid before the Assembly in draft”.

 

 

What does it mean if a statutory rule is subject to Confirmatory Procedure?

The procedure to which any statutory rule is subject will be set out in the parent legislation.

A statutory rule which is subject to confirmatory resolution procedure is made by the rule making body, usually a Department, and then laid before the Assembly.

It ceases to have effect within a specified period provided for in the parent legislation unless it has been approved by a resolution of the Assembly within that time.

If the Assembly votes in favour of a motion to confirm the statutory rule, it will remain law.

If the Assembly votes against a motion to confirm the statutory rule, the Statutory rule ceases to have effect from that day.

When it is made, the rule will have an italicised heading at the top of the first page –

“Regulations / Order made by the Department of [ ] and laid before the Assembly under [ ] for approval of the Assembly before the expiration of [6] months from the date of their / its coming into operation”.

If the rule is approved by the Assembly, it is printed again by the Department with the heading omitted and an entry inserted below the operative date –

“Approved by resolution of the Assembly on ..”.

 

 

What does it mean if a statutory rule is Not Subject to Assembly Procedure?

There are some statutory rules which are required to be laid before the Assembly but no provision is made for any Assembly procedure and others which may not be required to be laid.

With such rules there are no further Assembly proceedings, but they may be provided to the Assembly for information purposes and a Committee, if it wishes, may consider any provisions it contains within the Committee’s remit.

 

What is the Emergency Procedure used in relation to some coronavirus regulations?

The Public Health Act (Northern Ireland) 1967 (as amended by the Coronavirus Act 2020) gives the Department of Health powers to make regulations for the protection of public health in Northern Ireland.  Section 25Q of the Public Health Act (Northern Ireland) 1967 sets out the Assembly procedure to be used in defined circumstances when using some of these powers. This is called the ‘emergency procedure’. 

The emergency procedure allows certain regulations, which would otherwise have been subject to the draft affirmative procedure, to be made without a draft of the regulations first having been laid before the Assembly and approved by the Assembly. It may be used if the regulations contain a declaration that the Department is of the opinion that, by reason of urgency, it is necessary to make the regulations without a draft first being laid and approved. 

It is a confirmatory procedure. Regulations made by the emergency procedure must be laid before the Assembly.  The regulations made by the emergency procedure will cease to have effect at the end of the period of 28 days beginning with the day on which they are made unless, during that 28 day period, the regulations are approved by a resolution of the Assembly.  If the Assembly, during the 28 day period, decides to reject the regulations, the regulations cease to have effect at the end of that day instead.

 

What is a Commencement Order?

A commencement order is a type of statutory rule that appoints the day to commence, that is bring into force,  provisions in other legislation which has already been made.  Transitional provisions (setting out the arrangements in place to regulate matters when moving from one set of legislative arrangements to another) are sometimes included in commencement orders if this is authorised by the enabling legislation.  Commencement Orders may be laid in the Assembly and provided for information purposes.

 

What is the Statutory Period?

The statutory period is the period of time during which the Assembly can annul (strike down) a statutory rule which is subject to the negative resolution procedure.

The statutory period is set out in section 42 of the Interpretation Act (Northern Ireland) 1954.

It is 30 calendar days, or ten days on which the Assembly has sat, after the date on which the statutory rule was laid before the Assembly, whichever is longest.

 

 

What is the 21-Day Rule?

The 21-day rule applies only to statutory rules that are subject to Negative Resolution procedure. It is the well-established parliamentary practice that a minimum of 21 calendar days should ordinarily elapse between the date on which a statutory rule is laid before the Assembly, and the coming into force of the statutory rule.

The purpose of the 21-day rule is to allow the Assembly, including the relevant Committee and the Examiner of Statutory Rules carrying out technical scrutiny on the Committees’ behalf, an opportunity to consider the statutory rule before it comes into operation. 

The 21-day rule also acts to protect those who may be affected by changes in the law from being subject to those changes before they have had a reasonable opportunity to understand the effect of the changes and what they must do to satisfy any requirements of the new law.

The 21-day rule is distinct from the statutory period

 

 

Can a Statutory Rule be changed or opposed?

The opportunity for a Committee to influence the content of a statutory rule is when it is being developed by the relevant rule making body or Government Department.  Government Departments are responsible for developing and consulting on the policies and the parent legislation that is given effect through the statutory rules. 

A Committee cannot amend or adapt a statutory rule after it has been laid – it can only recommend that the Assembly support or reject the statutory rule as a whole.

 

 

What is a Prayer of Annulment?

A Prayer of Annulment is a motion tabled by a Member of the Assembly, or the Chairperson of an Assembly Commission calling for a particular statutory rule which is subject to the Negative Resolution Procedure, to be struck down (annulled).

The Member who tabled the motion will make a speech and other Members may also, in turn, add their views. The Minister of the Department that made the statutory rule will have the opportunity to put his or her case either opposing, or not as the case may be, the motion and addressing any issues raised by Members.

At the end of the debate, the Assembly will be asked to vote on the motion “That the [Name of the Statutory Rule] be annulled”.  If the motion is approved, then the statutory rule ceases to be part of the laws of Northern Ireland.  If the motion is defeated, then the statutory rule continues in force as part of the laws of Northern Ireland.

 

 

What is the Explanatory Memorandum?

Statutory rules laid before the Assembly are accompanied by an Explanatory Memorandum.  The Explanatory Memorandum along with the statutory rule’s Explanatory Notes (at the back of the statutory rule) should provide sufficient informationto gain a full understanding of the purpose and background to the statutory rule and what the main provisions will do.

Explanatory Memoranda are published on www.legislation.gov.uk along with the statutory rule, along with any additional documents (for example, an impact assessment or transposition notes) that have been prepared for a statutory rule.

 

 

What is the relevant Committee?

The ‘relevant Committee’ is the Assembly Committee established to scrutinise the work of the Department responsible for the making of the statutory rule. 

Occasionally, a rule will be made jointly by two or more Departments, and in this case, the relevant committees would each scrutinise the statutory rule.   

The Assembly Committee is listed for each statutory rule on the Assembly’s tracker.

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