Joint Committee on Statutory Instruments Fifteenth Report


APPENDIX 5

First memorandum by the Northern Ireland Office

Public Processions (Northern Ireland) Act 1998 (Accounts and Audit)
Order 1998 (S.I. 2001/851)
Public Processions (Northern Ireland) Act 1998 (Accounts and Audit)
Order 2001 (S.I. 2001/852)

1. The Department wishes to draw the attention of the Joint Committee to these two orders and to the course of action it intends to take in relation to them.

2. Both Orders relate to paragraph 12(5) of Schedule 1 to the Public Processions (Northern Ireland) Act 1998. This paragraph, as enacted, provided that the financial year of the Parades Commission for Northern Ireland (established by section 1 of that Act) was to be the period of 12 months ending on 31 December; but that the first financial year was to be the period beginning with the establishment of the Parades Commission and ending with the next 3 December. The Parades Commission was established on the Royal Assent of the Act, 16 February 1998.

3. The Public Processions (Northern Ireland) Act 1998 (Accounts and Audit) Order 1998 (hereinafter referred to as "the 1st Order") was made on the 29 December 1998. That is, before the end of the first financial year as provided for in the Act. This Order amended paragraph 12(5) of Schedule 1 so that the financial year was the period of 12 months ending on 31 March, but provided that the first financial year was the period beginning with the establishment of the Parades Commission and ending on the next 31 March.

4. The 1st Order should have been laid before Parliament pursuant to section 16(4) of the 1998 Act. Regrettably, the Order was not laid before Parliament, nor was a copy sent to Her Majesty's Stationery Office for printing. The department acknowledges that this is in breach of its obligations under the Statutory Instruments Act 1946, in particular sections 2 and 4. The department deeply regrets this and apologises to both Houses.

5. The Parades Commission has acted on the basis of the 1st Order and has prepared accounts for financial years as follows: first period of 16 February 1998 to 31 March 1999, second period 1 April 1999 to 31 March 2000.

6. Unfortunately, the relevant officials in the department misunderstood the effect of the 1st Order. They assumed that the failure to lay the Order rendered it void and of no effect. They therefore assumed that the 1998 Act remained as enacted. With this in mind the department made a further Order on 7 March 2000. This is the Public Processions (Northern Ireland) Act 1998 (Accounts and Audit) Order 2000 (S.I. 2000/655) (hereinafter "the 2nd Order"). The 2nd Order purported to amend paragraph 12(5) of Schedule 1 to the 1998 Act by substituting words "31st December" where they first appear with the words "31st March". The 2nd Order was the subject of a request for a memorandum from the Joint Committee on 29 March 2000 and the special attention of both Houses was drawn to the order on the ground that it was defectively drafted (the Joint Committee's sixteenth Report of the Session 1999-2000). A copy of the 2nd Order is attached to this memorandum [not printed].

7. Given the ambiguity in the 2nd Order highlighted by the request from the Joint Committee, and in the erroneous belief that it was the 2nd Order and not the 1st Order which amended the 1998 Act, the department made a further Order on the 23 February 2001: the Public Processions (Northern Ireland) Act 1998 (Accounts and Audit) Order 2001 (hereinafter "the 3rd Order). This 3rd Order revokes the 2nd Order. It also purports to amend paragraph 12(5) of Schedule 1 to the Act by providing that the financial year is to be the period of 12 months ending on 31 March, but that the financial year that began on 1 January 2000 shall end on 31 March 2001. This Order was laid before Parliament on 9 March.

8. Subsequent to the making of the 3rd Order the department realised the legal effect of the 1st Order. In the light of this legal effect, the department acknowledges that the 2nd and 3rd Orders are defective, save to the extent that the 3rd Order revokes the 2nd. The position as a matter of law is, and has been since 29 December 1998, that provided for by the 1st Order.

9. The department intends to rectify this situation in the following way. The 3rd order will be revoked by a further Order to be made immediately. This further Order has not been laid simultaneously with the 1st and 3rd Orders simply because it was not possible to make and lay the further Order by the 9 March, the date by which the 3rd Order must be laid to comply with the 21 day rule (it comes into force on 30 March). The department will make this further Order available free of charge to those who have bought the 3rd Order.

10. The department has laid the 1st Order in order to rectify the omission in 1998. It has also sent the 1st Order to Her Majesty's Stationery Office for printing. The department has also notified the Lord Chancellor and the Speaker of the House of Commons of the fact that the Order came into force before it was laid and apologised for the failure to comply with the proviso to section 4(1) of the Statutory Instruments Act 1946.

11. The department deeply regrets that it failed to follow the correct Parliamentary and other procedures in relation to this Order and recognises that this deprived Parliament of the opportunity to comment upon the Order shortly after it was made. The steps the department have now taken in relation to this Order are intended to rectify these earlier errors and, as far as is possible at this stage, to accord to Parliament its full rights.

12 March 2001


 
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