Report of the Examiner of Statutory Rules

to the Assembly and

the Appropriate Committees

9 November 2007

Committee for Agriculture and Rural Development	S.R. 2007 Nos. 421, 441, 447
Committee for Employment and Learning	S.R. 2007 No. 442
Committee for Enterprise, Trade and Investment	S.R. 2007 No. 458, 462
Committee for the Environment	S.R. 2007 Nos. 432, 435, 448, 455
Committee for Finance and Personnel	S.R. 2007 No. 452
Committee for Health, Social Services and Public Safety	S.R. 2007 Nos. 434, 436, 437,443
Committee for Regional Development	S.R. 2007 Nos. 446, 459
Committee for Social Development	S.R. 2007 No. 457

NIA 60/07-08

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;

(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 ENVIRONMENTAL IMPACT ASSESSMENT (Agriculture) Regulations (Northern Ireland) 2007 (S.R. 2007/421)

3. I draw the attention of the Committee for Agriculture and Rural Development and the Assembly to the Environmental Impact Assessment (Agriculture) Regulations (Northern Ireland) 2007 (S.R. 2007/421) on the ground that they are defectively drafted, acknowledged in effect by the Department for Agriculture and Rural Development. The Department has indicated that it intends to bring forward an amendment to correct points relating to regulations 2(1), 24(4)(b), 30(8) and (9).

4. The expression "the EIA Directive" is used throughout. But it seems that the definition of this expression was left out of regulation 2(1) (interpretation), no doubt as an oversight on the part of the Department. The Directive is mentioned in the explanatory note, but of course the explanatory note is not part of the Regulations themselves.

5. In regulation 24(4)(b) the expression "the Department on appeal decides" is used. But appeals lie from the Department to an "appointed person", giving the appeal process independence from the Department’s initial decision making. In the corresponding Regulations for England (in S.I. 2006/2362) appeals lie to the Secretary of State [for Environment, Food and Rural Affairs], and it seems that that is where the problem lies with the drafting of regulation 24(4)(b). I suggested to the Department that something like "the Department (or on appeal the appointed person) decides" would meet its intention.

6. Somewhat similarly to the previous point, regulation 30(8) refers to the revocation or the variation of a notice by the Department; whereas regulation 30(7)(b) envisages that this is the function of the appointed person on appeal; and that is also borne out by what is in regulation 30(9).

The Export Restrictions (Foot-and-Mouth Disease)
(Amendment No. 3) Regulations (Northern Ireland)
2007 (S.R. 2007/441)

7. I draw the attention of the Committee for Agriculture and Rural Development and the Assembly to the Environmental Impact Assessment (Agriculture) Regulations (Northern Ireland) 2007 (S.R. 2007/421) on the ground that they were laid in breach of the 21-day rule, explained by the Department of Agriculture and Rural Development. In the circumstances I consider that this is reasonable as in the case of the earlier Regulations relating to this, on which I have reported in previous reports. I commend the Department for laying the Regulations before they came into operation.

The Electricity (Single wholesale market) (Amendment)
Order (Northern Ireland) 2007 (S.R. 2007/458)

8. I draw the attention of the Committee for Enterprise, Trade and Investment and the Assembly to the Electricity (Single Wholesale Market) (Amendment) Order (Northern Ireland) 2007 (S.R. 2007/458) on the ground that it was laid in breach of the 21-day rule, explained by the Department of Enterprise, Trade and Investment. I am of the view that in the circumstances the explanation is reasonable.

9. The Order substitutes a new definition of "the Irish Minister" in Article 2(5) of the Electricity (Single Wholesale Market) (Northern Ireland) Order 2007 (S.I. 2007/913 (N.I. 7)) under a power to make such amendments as are necessary or expedient in consequence of any change in the law of [the Republic of] Ireland. The change simply comes about in this case as a result of a recent change in the title of the relevant Irish Minister from Minister for Communications, Marine and Natural Resources to Minister for Communications, Energy and Natural Resources. It came to the Department’s attention at a late stage and the Department needed to act quickly to ensure that everything was in place, and fully in order, so that appointments could be made to the SEM Committee prior to the SEM "go-live" date of 1 November 2007. Accordingly, the Order was made, and came into operation on, 30 October 2007.

W G Nabney

Examiner of Statutory Rules

9 November 2007

APPENDIX

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

Statutory rule subject to affirmative resolution

The Administration of Estates (Rights of Surviving Spouse or Civil Partner) Order (Northern Ireland) 2007 (S.R. 2007/452)

Statutory rule subject to confirmatory procedure

The Company and Business Names (Amendment No. 2) Regulations (Northern Ireland) 2007 (S.R. 2007/462)

Statutory rules subject to negative resolution

The Environmental Impact Assessment (Agriculture) Regulations (Northern Ireland) 2007 (S.R. 2007/421)

The Planning (General Development) (Amendment No. 2) Order (Northern Ireland) 2007 (S.R. 2007/432)

The Materials and Articles in Contact with Food Regulations (Northern Ireland) 2007 (S.R. 2007/434)

The Motor Vehicles (Driving Licences) (Fees) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/435)

General Ophthalmic Services Regulations (Northern Ireland) 2007 (S.R. 2007/436)

Travelling Expenses and Remission of Charges (Amendment No. 2) Regulations (Northern Ireland) 2007 (S.R. 2007/437)

The Export Restrictions (Foot-and-Mouth Disease) (Amendment No. 3) Regulations (Northern Ireland) 2007 (S.R. 2007/441)

The Student Fees (Amounts) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/442)

The Contaminants in Food (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/443)

The B127 Ballyconnell Road, Derrylin (Abandonment) Order (Northern Ireland) 2007 (S.R. 2007/446)

The Plant Health (Phytophthora ramorum) (Amendment) Regulations (Northern Ireland) 2007 (S.R. 2007/447)

The Local Government Pension Scheme (Amendment No. 3) Regulations (Northern Ireland) 2007 (S.R. 2007/448)

The Motor Vehicles (Compulsory Insurance) Regulations (Northern Ireland) 2007 (S.R. 2007/455)

The Occupational Pension Schemes (EEA States) Regulations (Northern Ireland) 2007 (S.R. 2007/457)

The Electricity (Single Wholesale Market) (Amendment) Order (Northern Ireland) 2007 (S.R. 2007/458)

The Belvedere Manor, Belfast (Abandonment) Order (Northern Ireland) 2007 (S.R. 2007/459)