Report of the Examiner of Statutory Rules to the Assembly and the Appropriate Committees

Thirty-fifth Report 25 March 2025

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1. Statutory Rules before Committees

1.1 Committee for Communities

1.2 Committee for Education

1.3 Committee for the Executive Office

1.4 Committee for Finance

1.5 Committee for Health

1.6 Committee for Infrastructure

2. Remit of the Examiner of Statutory Rules

3. Assembly procedures in relation to Statutory Rules

4. Statutory Rules drawn to the special attention of the Assembly

4.1 Breach of the 21 day rule

4.2 Drafting matters

Appendix - Reported Statutory Rules by Procedure

1. Statutory Rules before Committees

1.1 Committee for Communities

Subject to the negative resolution procedure

S.R. 2025/23: The Emergency Fuel Payment Regulations (Northern Ireland) 2025

S.R. 2025/38: The Pension Protection Fund and Occupational Pension Schemes (Levy Ceiling) Order (Northern Ireland) 2025

S.R. 2025/45: The Emergency Fuel Payment (Amendment) Regulations (Northern Ireland) 2025

S.R. 2025/52: The Guaranteed Minimum Pensions Increase Order (Northern Ireland) 2025

S.R. 2025/53: The Social Security Revaluation of Earnings Factors Order (Northern Ireland) 2025

1.2 Committee for Education

Subject to the negative resolution procedure

S.R. 2025/42: The Teachers' Pension Scheme (Amendment) Regulations (Northern Ireland) 2025

1.3 Committee for the Executive Office

Subject to the draft affirmative resolution procedure

Draft S.R.: The Northern Ireland Climate Commissioner Regulations (Northern Ireland) 2025

Subject to the negative resolution procedure

S.R. 2025/34: The Fair Employment (Specification of Public Authorities) (Amendment) Order (Northern Ireland) 2025

1.4 Committee for Finance

Subject to the draft affirmative resolution procedure

Draft S.R.: The Recognition of Professional Qualifications and Implementation of International Recognition Agreements (Amendment) (Extension to Switzerland etc.) Regulations (Northern Ireland) 2025

Subject to the negative resolution procedure

S.R. 2025/43: The Rates (Social Sector Value) (Amendment) Regulations (Northern Ireland) 2025

S.R. 2025/44: The Valuation (Telecommunications, Natural Gas and Water) (Amendment) Regulations (Northern Ireland) 2025

S.R. 2025/50: The Government Resources and Accounts Act (Northern Ireland) 2001 (Estimates and Accounts) (Designation of Bodies) Order 2025

S.R. 2025/55: The Public Service Pensions Revaluation Order (Northern Ireland) 2025

1.5 Committee for Health

Subject to the negative resolution procedure

S.R. 2025/46: The Optical Charges and Payments (Amendment) Regulations (Northern Ireland) 2025

1.6 Committee for Infrastructure

Subject to the negative resolution procedure

S.R. 2025/49: The Planning (Fees) (Amendment) Regulations (Northern Ireland) 2025

2. Remit of the Examiner of Statutory Rules

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 Assembly website.

To assist Committees of the Assembly in this scrutiny under Standing Order 43, the Examiner of Statutory Rules (the Examiner) shall carry out those technical scrutiny functions delegated to the Examiner by the relevant Committee. The terms of reference of the Examiner, under delegation, are 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 -

(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;

(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."

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.

3. Assembly procedures in relation to Statutory Rules

The procedure to which any statutory rule is subject will be set out in its parent legislation. These may include the following Assembly procedures.

The Negative Resolution Procedure

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]

The Confirmatory Resolution Procedure

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.

The Affirmative Resolution Procedure

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 of the Assembly.

The Draft Affirmative Resolution Procedure

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 of the Assembly.

4. Statutory Rules drawn to the special attention of the Assembly

4.1 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.

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.

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.

The 21 day rule acts to ensure transparency and accessibility.

Breach of the 21 day rule by Departments and other rule making bodies undermines the transparency and accessibility of the law.

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 in order to satisfy any requirements.

The 21 day rule also operates to ensure that the Assembly may carry out scrutiny of a statutory rule before it comes into force.

Breach of the 21 day rule by Departments and other rule making bodies negatively impacts the opportunity for effective scrutiny by the Assembly.

Departments and other rule making bodies should expect to meet the 21 day limit as a minimum. Where the 21 day rule is breached, a full explanation should be provided. This full explanation for breach of this important convention should, where possible, be given in the Explanatory Memorandum to the statutory rule.

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, if possible, in the Explanatory memorandum to the statutory rule.

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. 2025/34: The Fair Employment (Specification of Public Authorities) (Amendment) Order (Northern Ireland) 2025

I draw the special attention of the Assembly to S.R. 2025/34, The Fair Employment (Specification of Public Authorities) (Amendment) Order (Northern Ireland) 2025 (the Order), on the ground that the Order was laid in breach of the 21 day rule.

The Order was made on 19 February 2025, was laid on 19 March 2025, and will come into force on 31 March 2025.

The Department has acknowledged in correspondence the breach of the 21 day rule. The Department, stating its regret for the breach, has advised that the Order was laid in breach of the 21 day rule as a result of an administrative error. I am content that the Department has provided a satisfactory explanation for the breach in this instance.

S.R. 2025/45: The Emergency Fuel Payment (Amendment) Regulations (Northern Ireland) 2025

I draw the special attention of the Assembly to S.R. 2025/45, The Emergency Fuel Payment (Amendment) Regulations (Northern Ireland) 2025 (the Regulations), on the ground that the Regulations were laid in breach of the 21 day rule.

The Regulations were made on 7 March 2025, were laid on 7 March 2025, and came into force on 18 March 2025.

The Department acknowledged in correspondence, in advance of laying, that the Regulations would be laid in breach of the 21 day rule. The Department provided its explanation for the breach.

The Department, stating its regret for the breach, advised that the Regulations were laid in breach of the 21 day rule in order urgently to amend S.R. 2025/23, the Emergency Fuel Payment Regulations (Northern Ireland) 2025. I am content that the Department has provided a satisfactory explanation for the breach in this instance.

S.R. 2025/46: The Optical Charges and Payments (Amendment) Regulations (Northern Ireland) 2025

I draw the special attention of the Assembly to S.R. 2025/46, The Optical Charges and Payments (Amendment) Regulations (Northern Ireland) 2025 (the Regulations), on the ground that the Regulations were laid in breach of the 21 day rule.

The Regulations were made on 10 March 2025, were laid on 19 March 2025, and will come into force on 1 April 2025.

The Department has acknowledged in correspondence the breach of the 21 day rule. The Department, stating its regret for the breach, has advised that the Regulations were laid in breach of the 21 day rule as a result of an administrative error. I am content that the Department has provided a satisfactory explanation for the breach in this instance.

4.2 Drafting matters

Draft S.R.: The Northern Ireland Climate Commissioner Regulations (Northern Ireland) 2025

The special attention of the Assembly is drawn to the draft Northern Ireland Climate Commissioner Regulations (Northern Ireland) 2025 (the draft Regulations) in relation to minor errors in their drafting.

The draft Regulations contain a number of typographical errors which have arisen as a result of a technical drafting issue. The Department has confirmed that it will correct these minor errors at its earliest opportunity. I am content with the approach of the Department in this instance.

Angela Kelly
Examiner of Statutory Rules
25 March 2025

Appendix - Reported Statutory Rules by Procedure

Subject to the draft affirmative resolution procedure

Draft S.R.: The Northern Ireland Climate Commissioner Regulations (Northern Ireland) 2025

Draft S.R.: The Recognition of Professional Qualifications and Implementation of International Recognition Agreements (Amendment) (Extension to Switzerland etc.) Regulations (Northern Ireland) 2025

Subject to the negative resolution procedure