Report of the Examiner of Statutory Rules to the Assembly and the Appropriate Committees
Twenty Second Report 11 September 2024
Twenty Second Report Of the Examiner of Statutory Rules.pdf (185.75 kb)
Contents
1. Statutory Rules before Committees
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
Appendix - Reported Statutory Rules by Procedure
Subject to the confirmatory resolution procedure
Subject to the negative resolution procedure
1. Statutory Rules before Committees
1.1 Committee for Communities
Subject to the negative resolution procedure
S.R. 2024/131: The Pensions (2005 Order) (Codes of Practice) (Revocation) Order (Northern Ireland) 2024
Subject to the confirmatory resolution procedure
S.R. 2024/136: The Occupational Pension Schemes (Collective Money Purchase Schemes) (Amendment) Regulations (Northern Ireland) 2024
1.2 Committee for the Economy
Subject to the negative resolution procedure
S.R. 2024/128: The Further Education (Student Support) (Eligibility) (Amendment) Regulations (Northern Ireland) 2024
S.R. 2024/157: The Education (Student Support, etc.) (Amendment No.2) Regulations (Northern Ireland) 2024
1.3 Committee for Justice
Subject to the negative resolution procedure
S.R. 2024/147: The Police Service of Northern Ireland and Police Service of Northern Ireland Reserve (Injury Benefit) (Amendment) (No. 2) Regulations 2024
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;
(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.”
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
Astatutory 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.
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.
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.
The purpose of the rule is 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.
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 rule on the ground that the Rule was laid in breach of the 21 day rule.
S.R. 2024/147: The Police Service of Northern Ireland and Police Service of Northern Ireland Reserve (Injury Benefit) (Amendment) (No. 2) Regulations 2024
The Regulations were made on 27 June 2024, came into force on 2 July 2024, and were laid on 28 June 2024.
The Department acknowledged in the Explanatory Memorandum to the Regulations that the Regulations were laid in breach of the 21 day rule providing its explanation for the breach. I am content that the Department has provided a satisfactory explanation for the breach on this occasion.
4.2 Drafting matters
S.R. 2024/128: The Further Education (Student Support) (Eligibility) (Amendment) Regulations (Northern Ireland) 2024
S.R. 2024/157: The Education (Student Support, etc.) (Amendment No.2) Regulations (Northern Ireland) 2024
The special attention of the Assembly is drawn to the Further Education (Student Support) (Eligibility) (Amendment) Regulations (Northern Ireland) 2024 and the Education (Student Support, etc.) (Amendment No.2) Regulations (Northern Ireland) 2024 (the Regulations) in relation to an error in the drafting of each.
Each Regulation amends S.R. 2012/306, the Further Education (Student Support) (Eligibility) Regulations (Northern Ireland) 2012, with amendments set out in their respective provisions. In each, however, amending text has erroneously been omitted from these provisions. The Department advises that it will make the appropriate correcting amendments to each of the Regulations at its earliest opportunity. I am content with this approach.
S.R. 2024/147: The Police Service of Northern Ireland and Police Service of Northern Ireland Reserve (Injury Benefit) (Amendment) (No. 2) Regulations 2024
The special attention of the Assembly is drawn to the Police Service of Northern Ireland and Police Service of Northern Ireland Reserve (Injury Benefit) (Amendment) (No. 2) Regulations 2024 (the Regulations) in relation to a minor error in their drafting.
In regulation 9(1) of the Regulations the text “in paragraph (2)(k)” should read “in paragraph (2)”. The Department has acknowledged the error and advises that it will make the appropriate amendment at its earliest opportunity. I am content with this approach.
Angela Kelly
Examiner of Statutory Rules
11 September 2024
Appendix - Reported Statutory Rules by Procedure
Subject to the confirmatory resolution procedure
S.R. 2024/136: The Occupational Pension Schemes (Collective Money Purchase Schemes) (Amendment) Regulations (Northern Ireland) 2024
Subject to the negative resolution procedure
S.R. 2024/128: The Further Education (Student Support) (Eligibility) (Amendment) Regulations (Northern Ireland) 2024
S.R. 2024/131: The Pensions (2005 Order) (Codes of Practice) (Revocation) Order (Northern Ireland) 2024
S.R. 2024/147: The Police Service of Northern Ireland and Police Service of Northern Ireland Reserve (Injury Benefit) (Amendment) (No. 2) Regulations 2024
S.R. 2024/157: The Education (Student Support, etc.) (Amendment No.2) Regulations (Northern Ireland) 2024
