Session 2007/2008
Third Report
Report of the
Examiner of Statutory Rules
to
the Assembly
and
the Appropriate Committees
5 October 2007
| Committee for Agriculture and Rural Development | S.R. 2007 Nos. 399, 400, 401 |
| Committee for Education | S.R. 2007 No. 402 |
| Committee for Enterprise, Trade and Investment | S.R. 2007 Nos. 383, 384, 385, 386, 387, 388, 389, 390, 403, 406 |
| Committee for the Environment | S.R. 2007 Nos. 404, 405 |
| Committee for Health, Social Services and Public Safety | S.R. 2007 No. 408 |
NIA 46/07-08
1. In accordance with the delegations in respect of the technical scrutiny of statutory rules under Standing Order 41(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 41(6) (taken with the delegations under Standing Order 41(4)(b)) 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 rules to which attention is drawn in this report
The Measuring Instruments (Automatic Catchweighers) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/383)
The Measuring Instruments (Automatic Gravimetric Filling Instruments) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/384)
The Measuring Instruments (Liquid Fuel and Lubricants) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/385)
The Measuring Instruments (Beltweighers) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/386)
The Measuring Instruments (Capacity Serving Measures) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/387)
The Measuring Instruments (Liquid Fuel by Road Tanker) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/388)
The Measuring Instruments (Automatic Discontinuous Totalisers) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/389)
The Measuring Instruments (Material Measures of Length) (Use for Trade) Regulations (Northern Ireland) 2007
(S.R. 2007/390)
3. I draw the attention of the Committee for Enterprise, Trade and Investment and the Assembly to the above-entitled Regulations on the ground that they are each defectively drafted in one respect, acknowledged by the Department of Enterprise Trade and Investment.
4. Regulation 2 of each of the Regulations contains a definition of "place on the market" which to "making available for first time in a member State". The definition corresponds to the definition of "place of the market" in Directive 2004/22/EC which refers to "making available for the first time in the Community". That, taken with the definition of "member State" in the European Communities Act 1972, suggests to me that "member State" means a member State of the European Community
5. The Directive has been extended to the European Economic Area (that is to say, the European Community together with Norway, Iceland and Liechtenstein) by EEA Joint Committee Decision 31/2005, and this is reflected in the corresponding provisions for Great Britain. The Department has acknowledged that "member State" in the context of "place of the market" in the Regulations should expressly include Norway, Iceland and Liechtenstein and intends to bring forward an early amendment to deal with this point. I report accordingly.
THE EXPORT RESTRICTIONS (FOOT-AND-MOUTH DISEASE) (AMENDMENT No. 2) Regulations (Northern Ireland) 2007 (S.R. 2007/399)
6. I draw the attention of the Committee for Agriculture and Rural Development and the Assembly to the Export Restrictions (Foot-and-Mouth Disease) Regulations (Northern Ireland) 2007 (S.R. 2007/399) on the ground that they were laid in breach of the 21-day, that is to say the well-established rule of practice whereby, in the case of a statutory rule is subject to negative resolution, a Department or other rule-making body should allow at least 21 days between the date of laying and that date on which the statutory rule comes into operation. They were also laid after they came into operation. The Department of Agriculture and Rural Development has explained the breach in the same way as it explained those in respect of the earlier Regulations (S.R. 2007/357 and S.R. 2007/364) to which I drew attention on that ground in the Second Report of Session 2007 – 2008 and I see no need to further recite that. All I will say is that the Department could perhaps have laid the Regulations slightly earlier: the Regulations were made, and came into operation, on 14 September 2007; they were laid on 25 September 2007.
The Seed Potatoes (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/401)
7. I draw the attention of the Committee for Agriculture and Rural Development and the Assembly to the Seed Potatoes (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/401) on the grounds that they are defectively drafted in one respect and that the drafting could be improved in several places. The Department for Agriculture and Rural Development has noted my comments and will take them into account when the Regulations are next amended or consolidated.
8. The drafting defect is simply that regulation 3(2)(n) introduces a new definition of "test and trial seed potatoes" into regulation 2(1) of the principal Regulations as a textual amendment. So far so good. But part of that definition contains the words "of the principal Regulations (as amended by regulations 5 and 21) of these Regulations)": plainly those words should not have been included since the whole purpose and structure of these Regulations is to introduce direct textual amendments into the principal Regulations.
9. Other drafting points are that expressions such as "i.e." and "and/or" should not appear in the body of legislation. The former occurs in regulation 4/substituted regulation 3(2) of the principal regulations ("for export to any third country, i.e. any country outside the European Community"): "that is" or "that is to say" might have been more appropriate; but the words could have been left out completely to better effect ("for export to any country outside the European Community"). The latter occurs in regulation 5(11)/new regulation 4A(2) ("the maintenance and/or cultivation or use"): here it would have been sufficient and better, it seems to me, to have said "the maintenance, cultivation or use".
10. In two places (regulation 7(2)/amendment of regulation 10; and regulation 16/amendment of Schedule 5 Part II) the Department clearly intended to provide for the disapplication (by the Department) of certain requirements relating to the marking of containers, but it simply made a statement that those requirements "may not apply at the discretion of the Department". It seemed to me that the drafting of those provisions needed to be linked and tightened to make clear the Department’s intention and state something about the procedure for disapplying the requirements. I have made some drafting suggestions accordingly.
The Food for particular nutritional uses (MiscellAneous Amendments) Regulations (Northern Ireland) 2007 (S.R. 2007/408)
11. I draw the attention of the Committee for Health, Social Services and Public Safety and the Assembly to the Food for Particular Nutritional Uses (Miscellaneous Amendments) Regulations (Northern Ireland) 2007 (S.R. 2007/408) on the ground that they were laid in breach of the 21-day rule (marginally and unintentionally in this case). The Food Standards Agency plainly intended to lay the Regulations so to comply with the 21-day rule: its covering letter, dated 24 September 2007 makes that clear; but, unfortunately, the Regulations did not reach the Business Office until 26 September 2007 (the date of laying); and with a commencement date of 15 October 2007, that allowed only 19 days at most. It seems that that the Regulations found their way into the post instead of being delivered to the Business Office by other means, and the Food Standards Agency has apologised for the breach. I make the comment in this case that the Food Standards Agency acted very reasonably. But, it is perhaps timely to remind Departments, all the more so given the likelihood of postal disruption because of strikes at Royal Mail, that, ideally, Departments should not rely on the post when laying statutory rules.
W G Nabney
Examiner of Statutory Rules
5 October 2007
APPENDIX
(The attention of the appropriate Committees and the Assembly is drawn to those statutory rules marked in bold)
Statutory rules subject to negative resolution
The Measuring Instruments (Automatic Catchweighers) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/383)
The Measuring Instruments (Automatic Gravimetric Filling Instruments) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/384)
The Measuring Instruments (Liquid Fuel and Lubricants) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/385)
The Measuring Instruments (Beltweighers) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/386)
The Measuring Instruments (Capacity Serving Measures) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/387)
The Measuring Instruments (Liquid Fuel by Road Tanker) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/388)
The Measuring Instruments (Automatic Discontinuous Totalisers) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/389)
The Measuring Instruments (Material Measures of Length) (Use for Trade) Regulations (Northern Ireland) 2007 (S.R. 2007/390)
The Export Restrictions (Foot-and-Mouth Disease) (Amendment No. 2) Regulations (Northern Ireland) 2007 (S.R. 2007/399)
The Marketing of Vegetable Plant Material (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/400)
The Seed Potatoes (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/401)
The General Teaching Council (Approval of Qualifications) Regulations (Northern Ireland) 2007 (S.R. 2007/402)
The Health and Safety at Work Order (Application to Environmentally Hazardous Substances) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/403)
The Motor Vehicles (Construction and Use) (Amendment No. 3) Regulations (Northern Ireland) 2007 (S.R. 2007/404)
The Surface Waters (Fishlife) (Classification) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/405)
The Gas (Designation of Pipelines) Order (Northern Ireland) 2007 (S.R. 2007/406)