Culture, Arts and Leisure Committee
(S.R. 2002 No. 274)

Employment and Learning Committee
(S.R. 2002 Nos. 272 and 286 and the Draft Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002)

Health, Social Services and Public Safety Committee
(S.R. 2002 Nos. 266 and 283)

Social Development Committee
(S.R. 2002 Nos. 267, 268, 270, 275, 276, 279, 280 and 284)

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 the Part-time Workers (Prevention of Less Favourable Treatment) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 286) and the draft Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002, are subject to negative resolution; the Part-time Workers (Prevention of Less Favourable Treatment) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 286) is subject to the confirmatory procedure and was approved by resolution of the Assembly on 23 September 2002; the draft Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002 (subject to approval in draft) was approved by resolution of the Assembly on 23 September 2002.
3. I draw the attention of the Assembly and the Social Development Committee to the Social Security (Students and Income-Related Benefits Amendment No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 270) and the Social Fund (Miscellaneous Amendments) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 284) on the ground that there is in the case of both sets of Regulations a breach of the 21-day rule (that is to say, the long-established rule of practice in 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). But I am satisfied that in both cases the Regulations were made and laid very promptly — within a few days of the corresponding statutory instruments for Great Britain, with which there is a generally accepted need to maintain parity.
4. I draw the attention of the Assembly and the Employment and Learning Committee to the Education (Grants for Disabled Postgraduate Students) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 272) on the ground that they were laid after they came into operation: the Regulations were made on 29 August 2002, came into operation on 1 September 2002 and were laid on 4 September 2002 . The Department for Learning and Employment has explained this as a breach of the 21-day rule in the following terms—

"The attached rule …. is made in parity with Regulations made by the Department for Education and Skills [England and Wales] which came into operation on 30 August 2002. The preparation of the Northern Ireland SR was based on the first draft of the DfES Statutory Instrument, which was not available to DEL until 7 August [Examiner’s note: S.I. 2002/2104 (that is to say, the corresponding Regulations for England and Wales) was made on 8 August 2002, was laid before Parliament on 9 August 2002 and was available on the Internet on 22 August 2002]. When we did finally receive confirmation that the regulations had been made, urgent action was taken to reflect the change in the Northern Ireland SR and to have it cleared with Departmental Solicitor’s Office. The S.R. was duly made on 29 August, to come into operation on 1 September [to match the commencement date of the corresponding Regulations for England and Wales]. The Department regrets the breach of the 21-day rule but, given the tight timescale which was imposed upon us, it was unfortunately inevitable.".

I can see that in this case that the Department was under pressure and there was clearly a very limited time between the making of the Regulations and their coming operation which largely explains the fact that they were laid after they came into operation. But one wonders whether the Department could not have received the final version of the Regulations for England and Wales at an earlier stage, say, by fax or e-mail: it seems, as I have noted above, that the first draft of those Regulations was received only one day before they were made and only two days before they were laid before Parliament.

5. I draw the attention of the Assembly and the Health, Social Services and Public Safety Committee to the Fire Services (Appointments and Promotion) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 283) on the ground that there is a breach of the 21-day rule (that is to say, the long-established rule of practice in 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) and also to mention two points relating to the drafting of the Regulations.
6. First, there is a breach of the 21-day rule in that the Regulations were laid on 16 September 2002 whereas the Regulations come into operation on the 1 October 2002. The Department of Health, Social Services and Public Safety has accepted the point and indicated that, with hindsight, the Regulations should have been laid in typescript on 10 September 2002, the date when they were made.
7. Second, it seems to me that the provision for the delegation of the Fire Authority’s appointments functions (new regulation 4(1A)) is in the wrong place: logically, it should have been inserted after regulation 4(2) (procedure of Fire Authority in making appointment) as new regulation 4(2A). The Department has noted the point.
8. Third, I suggested to the Department that it would have been better to have expressly stated in new regulation 4(1)(b) that it was for the Fire Authority to decide what experience and qualifications [to be an eligible candidate in a selection competition for Chief Fire Officer] were equivalent to those set out in regulation 4(1)(a) thus—

"(b) he has acquired experience and qualifications which appear to the Authority to be [Examiner’s suggestion] equivalent to those specified in heads (i) and (ii) of sub-paragraph (a).".

The reply I received from the Department on this point (which is a fairly small point suggesting a way in which the provision might have been drafted more firmly) does not seem to stand up to analysis and indeed seems to be somewhat contradictory on its face, as I am sure the Department and its advisers would concede. It is in the following terms—

"Equivalent experience and qualifications. … [T]he test as to equivalency of experience and qualifications has to be objective and that nothing in the legislation should suggest otherwise. This means that the clause in question must not include a reference to the judgement being made by a specific body or person. Were such a reference included, the implication would be that the decision regarding equivalence of qualifications and experience could vary depending on the body making the judgement and this would leave the appointment process open to legal challenge. … [T]he Fire Authority as the employer will have clear responsibility for making this decision.".

Plainly, the reality of the matter in the context of these Regulations is that the decision as to what experience and qualifications are equivalent must be taken by the Fire Authority (or an appointments committee under the delegated authority): that must be so; the answer to the question as to what experience and qualifications are equivalent to those specified in the preceding sub-paragraph (which sets out particular experience and qualifications) does not mysteriously emerge from the ether.

9. I draw attention to the Fire Services (Appointments and Promotion) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 283) accordingly. The Department may perhaps wish to consider bringing forward further Regulations to tidy the position for the future in the light of the points mentioned in paragraphs 7 and 8.
10. Subject to the points set out in paragraphs 3 to 9, 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.

    W G Nabney

    Examiner of Statutory Rules
    27 September 2002

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

The General Medical Services (Amendment No. 2) Regulations (Northern Ireland) 2002
(S.R. 2002 No. 266)

The Social Security (Personal Allowances for Children and Young Persons Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 267)

The Stakeholder Pension Schemes (Amendment No. 2) Regulations (Northern Ireland) 2002
(S.R. 2002 No. 268)

The Plant Health (Phytophthora ramorum) Order (Northern Ireland) 2002 (S.R. 2002 No. 269)

The Plant Health (Amendment) Order (Northern Ireland) 2002 (S.R. 2002 No. 273)

Fisheries (Amendment No. 2) Byelaws (Northern Ireland) 2002 (S.R. 2002 No. 274)

The Social Security (Employment Programme Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 275)

The Social Security (Incapacity) (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 276)

The Occupational Pension Schemes (Member-nominated Trustees and Directors) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 279)

The Housing Benefit (General) (Amendment) Regulations (Northern Ireland) 2002
(S.R. 2002 No. 280)

Part-time Workers (Prevention of Less Favourable Treatment) (Amendment) Regulations
(Northern Ireland) 2002 (S.R. 2002 No. 286) [approved by resolution of the Assembly
on 23 September 2002]

Draft Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations
(Northern Ireland) 2002 [approved by resolution of the Assembly on 23 September 2002]