Ninth Report of the Examiner of Statutory Rules to the Assembly and the Appropriate Committees 2021 - 2022

21 January 2022 -  NIA 163/17-22

Ninth Report of the Examiner of Statutory Rules 2021 - 2022.pdf (237.39 kb)

1. Remit of the Examiner of Statutory Rules

1.1 Assembly Standing Order 43 provides that every statutory rule or draft statutory rule which is laid before the Assembly and is subject to Assembly proceedings shall stand referred to the appropriate Committee of the Assembly for scrutiny. The appropriate Committee may also scrutinise any statutory rule which deals with a transferred matter, within the meaning of the Northern Ireland Act 1998, which is not subject to Assembly proceedings. The Standing Orders of the Assembly are published on the Northern Ireland Assembly website.

1.2 To assist Committees of the Assembly in the scrutiny of such statutory rules under Standing Order 43, the Examiner of Statutory Rules (the Examiner) shall carry out those functions delegated to the Examiner in relation to technical scrutiny.

1.3 The terms of reference of the Examiner, under delegation from the appropriate Committee, are as set out in Standing Order 43(6) as follows:

“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 –

1. it imposes a charge on the public revenues or prescribes the  amount of any such charge;
2. 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;
3. the parent legislation excludes it from challenge in the courts;
4. it purports to have retrospective effect where the parent legislation confers no express authority so to provide;
5. there appears to have been unjustifiable delay in the publication of it or in the laying of it before the Assembly;
6. 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;
7. it calls for elucidation;
8. 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.”

1.4 Standing Order 43(7) provides that the Examiner shall, where practicable, report on a statutory rule or draft statutory rule before any resolution or motion relating to that statutory rule or draft statutory rule is moved in the Assembly.

2. Assembly procedure in relation to 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.

Rules Subject to Negative Resolution

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

It can be annulled by resolution of the Assembly within the ‘statutory period’.[1] It is then void from the date of that annulment.

The statutory period is set out in 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.[2]

Rules Subject to Confirmatory Resolution

A statutory rule which is subject to confirmatory procedure is made by the rule making body, often 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.

Rules Subject to Affirmative Resolution

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

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

Rules Subject to Draft Affirmative Resolution

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

3. Statutory rules to which attention is drawn in this report

3.1 Breach of the 21 day rule

The 21 day rule is the established rule of parliamentary practice whereby a Department or other rule-making body should, in the case of a statutory rule that is subject to negative resolution, allow a minimum of 21 days between the laying of the statutory rule and its coming into operation.

The 21 day rule 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.

Accordingly, a statutory rule should be laid at least 21 calendar days before it is due to come into force (including the date of laying) and only be brought into force on the twenty-second day at the very earliest.

The 21 day rule also operates to ensure that the Assembly may carry out scrutiny of a statutory rule before it comes into force.  A Department or other rule-making body should not breach the 21 day rule unless there exists a compelling need for urgency which it should set out fully at the time of laying of the statutory rule in question.

Only in the most exceptional circumstances should a statutory rule that is subject to negative resolution be laid after it has come into operation and, where it is so laid, a full explanation of the circumstances giving rise to that should be given.

I draw the attention of the Assembly to the following statutory rules on the ground that, in each case, the Rule was laid in breach of the 21 day rule.

S.R. 2021/322: The Health Protection (Coronavirus, International Travel) (2021 Consolidation) (Amendment No. 11) Regulations (Northern Ireland) 2021

The Regulations were made on 5 December 2021, came into force on 6 December 2021, and were laid on 6 December 2021.

The Department has acknowledged in correspondence that the Regulations were laid in breach of the 21 day rule explaining that the breach occurred in the context of its coronavirus pandemic response. I am content that the Department has, on this occasion, provided a satisfactory explanation for the breach.

S.R. 2021/323: The Health Protection (Coronavirus, International Travel, Operator Liability and Information to Passengers) (Amendment No. 11) Regulations (Northern Ireland) 2021

The Regulations were made on 6 December 2021, came into force on 7 December 2021, and were laid on 7 December 2021.

The Department has acknowledged in correspondence that the Regulations were laid in breach of the 21 day rule explaining that the breach occurred in the context of its coronavirus pandemic response. I am content that the Department has, on this occasion, provided a satisfactory explanation for the breach.

S.R. 2021/340: The Health Protection (Coronavirus, International Travel) (2021 Consolidation) (Amendment No. 12) Regulations (Northern Ireland) 2021

The Regulations were made on 14 December 2021, came into force on 15 December 2021, and were laid on 14 December 2021.

The Department has acknowledged in correspondence that the Regulations were laid in breach of the 21 day rule explaining that the breach occurred in the context of its coronavirus pandemic response. I am content that the Department has, on this occasion, provided a satisfactory explanation for the breach.

S.R. 2021/343: The Health Protection (Coronavirus, International Travel) (2021 Consolidation) (Amendment No. 13) Regulations (Northern Ireland) 2021

The Regulations were made on 15 December 2021, came into force on 16 December 2021, and were laid on 15 December 2021.

The Department has acknowledged in correspondence that the Regulations were laid in breach of the 21 day rule explaining that the breach occurred in the context of its coronavirus pandemic response. I am content that the Department has, on this occasion, provided a satisfactory explanation for the breach.

S.R. 2022/3: The Health Protection (Coronavirus, International Travel, Operator Liability and Information to Passengers) (Amendment) Regulations (Northern Ireland) 2022

The Regulations were made on 7 January 2022, came into force on 7 January 2022, and were laid on 7 January 2022.

The Department has acknowledged in correspondence that the Regulations were laid in breach of the 21 day rule explaining that the breach occurred in the context of its coronavirus pandemic response. I am content that the Department has, on this occasion, provided a satisfactory explanation for the breach.

3.2 Drafting and procedural

S.R. 2021/349: The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2021 (Amendment No.21) Regulations (Northern Ireland) 2021

SR: 2021/349 is drawn to the special attention of the Assembly in relation to a drafting error and an error of procedure.

S.R. 2021/349 was made and laid before the Assembly, subject to the confirmatory procedure. It contains a minor, non-substantive drafting error, this is a reference to ‘Parliament’ rather than to ‘the Assembly’ in the italic headings.

With the aim of correcting this error, the Department purported to withdraw S.R. 2021/349 and replace it with a rule of the same title and content, numbered S.R. 2021/350 (“S.R. 2021/350”). 

S.R. 2021/350 did not revoke S.R.2021/349. Further, the Department has advised that S.R. 2021/350 was not signed, it was not ‘made’. Accordingly, S.R. 2021/350 is not in force.

The Department acknowledges that S.R. 2021/349 is in force. The amendments made to the principal regulations (S.R. 2021/93, The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2021) are made by S.R. 2021/349.

The Department has confirmed that it will correct the minor drafting error in S.R. 2021/349 with a correction slip.

The Department has advised that it is liaising with legislation.gov and has requested that S.R. 2021/350 is removed from the legislation.gov website and that S.R. 2021/349 is added.

I am content with the Department’s approach to addressing these errors.

3.3 Procedural

S.R. 2021/338: The Single Use Carrier Bags Charge (Amendment)        Regulations (Northern Ireland) 2021

S.R. 2021/338 is drawn to the special attention of the Assembly in relation to an error of procedure.

S.R. 2021/338 was made and laid before the Assembly by the Department as subject to the affirmative resolution procedure. The rule should instead have been laid in draft, subject to the draft affirmative resolution procedure.

In order to address this error, the Department has laid in draft The Single Use Carrier Bags Charge (Amendment and Revocation) Regulations (Northern Ireland) 2022. If approved by resolution of the Assembly, these will make the intended provision and also revoke S.R. 2021/338.

I am content with the Department’s approach to addressing this error.

Angela Kelly                                                                   

Examiner of Statutory Rules

21 January 2022

Appendix

Statutory Rules subject to Northern Ireland Assembly Procedure

Subject to the draft affirmative resolution procedure:

Draft S.R.: The Single Use Carrier Bags Charge (Amendment and Revocation) Regulations (Northern Ireland) 2022, revoking
S.R. 2021/338: The Single Use Carrier Bags Charge (Amendment) Regulations (Northern Ireland) 2021 (laid in error as subject to the affirmative resolution procedure)

Subject to the confirmatory resolution procedure:

S.R. 2021/349: The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2021 (Amendment No.21) Regulations (Northern Ireland) 2021

Subject to the negative resolution procedure:

S.R.2021/321: The Spring Traps Approval (Amendment) Order (Northern Ireland) 2021

S.R. 2021/322: The Health Protection (Coronavirus, International Travel) (2021 Consolidation) (Amendment No. 11) Regulations (Northern Ireland) 2021

S.R. 2021/323: The Health Protection (Coronavirus, International Travel, Operator Liability and Information to Passengers) (Amendment No. 11) Regulations (Northern Ireland) 2021

S.R. 2021/326: The Tobacco Retailer (Fixed Penalty) (General) (Amendment) Regulations (Northern Ireland) 2021

S.R. 2021/332: The Smoke-free (Premises, Vehicle Operators and Penalty Notices) (Amendment) Regulations (Northern Ireland) 2021

S.R. 2021/339: The Magistrates’ Courts (Licensing) (Amendment) Rules (Northern Ireland) 2021

S.R. 2021/340: The Health Protection (Coronavirus, International Travel) (2021 Consolidation) (Amendment No. 12) Regulations (Northern Ireland) 2021

S.R. 2021/342: The Misuse of Drugs (Amendment No. 2) Regulations (Northern Ireland) 2021

S.R. 2021/343: The Health Protection (Coronavirus, International Travel) (2021 Consolidation) (Amendment No. 13) Regulations (Northern Ireland) 2021

S.R. 2022/3: The Health Protection (Coronavirus, International Travel, Operator Liability and Information to Passengers) (Amendment) Regulations (Northern Ireland) 2022

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