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

08 October 2010
NIA 11/10/11R


Committee for Agriculture and Rural Development S.R. 2010 No. 339
Committee for Employment and Learning Draft S.R.: The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations (Northern Ireland) 2010
Committee for the Environment S.R. 2010 No. 329
Committee for Enterprise, Trade and Investment S.R. 2010 No. 326
Committee for Finance and Personnel S.R. 2010 No. 324
Committee for Health, Social Services and Public Safety S.R. 2010 Nos. 291, 321, 322, 325, 335
Committee for Regional Development S.R. 2010 No. 331
Committee for Social Development S.R. 2010 Nos. 312, 332, 340

1. In accordance with the delegations in respect of the technical scrutiny of statutory rules under Standing Order 41(4)(b) (now renumbered as Standing Order 43(4)(b)) given to the Examiner of Statutory Rules by the appropriate Committees on 11, 16, 17 and 18 May 2007, I submit my report on the statutory rules listed in the Appendix.

2. My terms of reference are essentially set out in Standing Order 43(6) (taken with the delegations under Standing Order 43(4)(b)). They are as follows:

“(6) In scrutinising an instrument the appropriate Committee shall inter alia 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.”.

Statutory rule to which attention is drawn in this report

Gas Regulations (Applications for Licences and Extensions) (Northern Ireland) Regulations 2010 (S.R. 2010/326)

3. I draw the attention of the Committee for Enterprise, Trade and Investment and the Assembly to the Gas Regulations (Applications for Licences and Extensions) (Amendment) Regulations (Northern Ireland) 2010 (S.R. 2010/326) on the grounds that they were laid in breach of the 21-day rule (explained by the Department of Enterprise, Trade and Investment) and that they appear to contain a drafting defect that should be corrected as and when a suitable opportunity arises.

4. The Regulations were made and laid on 22 September 2010 and came into operation on 30 September 2010. The Department has explained that “the Department [for] Business, Innovation and Skills in London [as the lead Department in the implementation of the Services Directive (Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market), of which these Regulations are a small part] has received an Article 258 Reasoned Opinion and [has] been pressing the Department to bring the Regulations into force as soon as possible” to avoid infraction proceedings and the potential of a significant fine. In the circumstances I am prepared to take the view that the explanation for the breach appears to have been reasonable.

5. Regulation 3(a) amends paragraph 4 of Schedule 1 to the Gas (Applications for Licences and Extensions) Regulations (Northern Ireland) 1996 by omitting the words “in Northern Ireland”. It seems plain to me that the amendment should have omitted the words “resident in Northern Ireland” so that the paragraph in question would read (showing the actual (and intended) omission in strikethrough type):

“4.The name, address and telephone number of the person or persons [ resident in Northern Ireland] to whom correspondence or enquiries concerning the application should be directed.”.

I have passed the point to the Department, and I take it that the Department accepts that there is a small drafting defect. As I have indicated, this is something that should be corrected at the next opportunity; in the meantime the provision seems to work to achieve its intention, albeit with a slight awkwardness in its wording.

W G Nabney

Examiner of Statutory Rules

8 October 2010


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

Draft statutory rule requiring approval by resolution of the Assembly

The Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations (Northern Ireland) 2010

Statutory rules subject to negative resolution

The Regulation and Quality Improvement Authority (Fees and Frequencies of Inspections) (Amendment) Regulations (Northern Ireland) 2010 (S.R. 2010/291)

The Employment and Support Allowances (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010 (S.R. 2010/312)

The Materials and Articles in Contact with Food Regulations (Northern Ireland) 2010 (S.R. 2010/321)

The Food Irradiation (Amendment) Regulations (Northern Ireland) 2010 (S.R. 2010/322)

The Rates (Unoccupied Property) (Prescribed Information) Regulations (Northern Ireland) 2010 (S.R. 2010/324)

The Fire Safety Regulations (Northern Ireland) 2010 (S.R. 2010/325)

Gas (Applications for Licences and Extensions) (Amendment) Regulations (Northern Ireland) 2010 (S.R. 2010/326)

The Planning (Hazardous Substances) (Amendment) Regulations (Northern Ireland) 2010 (S.R. 2010/329)

The Bog Road, Ballygowan (Abandonment) Order (Northern Ireland) 2010 (S.R. 2010/331)

The Social Security (Disability Living Allowance) (Amendment) Regulations (Northern Ireland) 2010 (S.R. 2010/332)

The Contaminants in Food Regulations (Northern Ireland) 2010 (S.R. 2010/335)

The Welfare of Farmed Animals (Amendment) Regulations (Northern Ireland) 2010 (S.R. 2010/339)

The Social Security (Housing Costs) (Standard Interest Rate) (Amendment) Regulations (Northern Ireland) 2010 (S.R. 2010/340)