Report of the

Examiner of Statutory Rules

to

the Assembly

and

the Appropriate Committees

15 February 2008

Committee for Agriculture and Rural Development	S.R. 2008 No. 34, 37, 38
Committee for Employment and Learning	S.R. 2008 No. 47
Committee for Enterprise, Trade and Investment	S.R. 2008 No. 21
Committee for the Environment	S.R. 2008 Nos. 17, 18, 29
Committee for Finance and Personnel	S.R. 2008 Nos. 48, 49
Committee for Health, Social Services and Public Safety	S.R. 2008 No. 39
Committee for the Office of the First Minister and deputy First Minister	S.R. 2008 Nos. 26, 46
Committee for Regional Development	S.R. 2008 Nos. 27, 36, 40

NIA 101/07-08

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 Planning (ENvironmental ImPACT Assessment)
Regulations (Northern Ireland) 2008 (S.R. 2008/17)

3. I draw the attention of the Committee for the Environment and the Assembly to the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 2008 (S.R. 2008/17) on the ground that they are defectively drafted in two respects and that the drafting could be clearer in two other respects, acknowledged by the Department of the Environment. I add none of this is such that it affects the working of the Regulations.

4. The drafting defects are, first, that the provision made by regulation 5 should have been contained in two regulations (adopting the structure of the Regulations generally) rather than one, since they contain two separate and distinct amendments rather than one; and, second, that regulation 18 contains the unnecessary words “of the Planning (Environmental Impact Assessment) Regulations (Northern Ireland) 1999” (since regulation 2 expressly states that the 1999 Regulations are amended in accordance with regulation 3 to 20).

5. The matters in which the drafting could have been clearer are, first, that some of the definitions introduced by regulation 4 would have been better placed in alphabetical order; and, second, that 6 inserts regulation 5A, paragraph (2) of which, although plainly intended as a non-textual modification, is drafted in a way similar to a textual amendment. On the second matter (non-textual modifications) I have drawn the Department’s attention to some guidance relating to this from Parliamentary Counsel Office in London that might be helpful:

http://www.parliamentary-counsel.gov.uk/upload/assets/www.parliamentary_counsel.gov.uk/dtgrecommendations.pdf .

The Waste Management (Miscellaneous Provisions) Regulations ( Northern Ireland) 2008 (S.R. 2008/18)

6. I draw the attention of the Committee for the Environment and the Assembly to the Waste Management (Miscellaneous Provisions) Regulations (Northern Ireland) 2008 (S.R. 2008/18) on the grounds that they were laid in breach of the 21-day rule (that is to say, the long-established rule of practice, whereby, in the case of a statutory rule subject to negative resolution, should allow at least 21 days between the making of the rule and its coming into operation). The Department has explained the breach and I am fully satisfied that it has acted reasonably in the circumstances. The Regulations were made on 17 January 2008 and came into operation on 13 February 2008 (around 27 days), so time was fairly tight. They were laid in the Business Office on 28 January 2008, although the intention seems to have been to have laid them on 24 January 2008. The Regulations had been delayed pending an application for judicial review by the Ulster Farmers Union on related Regulations. The application for judicial review was subsequently withdrawn following discussions, and it was agreed that the timetable for these Regulations would be tied in with the IACS forms administered by the Department of Agriculture and Rural Development and finalised in February each year, so there was a certain urgency in bringing these Regulations into operation. The Committee considered the (proposed) Regulations on 10 and 17 January 2008. I make no criticism of the Department here, but I would once again suggest to Departments generally that it would be wise to have in place arrangements for hand delivery of statutory rules to the Business Office.

7. I also draw attention to the Regulations on the ground that the Explanatory Note (though not strictly part of the Regulations, so that the point does not affect their working in any way) cites Council Directive 75/442/EEC, now repealed and re-enacted in Directive 2006/12/EC of the European Parliament and of the Council: the Department has noted my comment on this and agrees that references to the 2006 Directive should be used in future (until such time, that is, as that Directive is itself replaced).

W G Nabney
Examiner of Statutory Rules
15 February 2008

APPENDIX

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

Statutory rules subject to affirmative resolution

The Motor Vehicles (Wearing of Seat Belts) (Amendment) Regulations ( Northern Ireland) 2008 (S.R. 2008/29)

The Departments (Transfer of Functions) Order ( Northern Ireland) 2008 (S.R. 2008/46)

The Rates (Regional Rates) Order ( Northern Ireland) 2008 (S.R. 2008/48)

The Rates (Industrial Hereditaments) (Amendment) Order ( Northern Ireland) 2008 (S.R. 2008/49)

Statutory rules subject to negative resolution

The Planning (Environmental Impact Assessment) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/17)

The Waste Management (Miscellaneous Provisions) Regulations (Northern Ireland) 2008 (S.R. 2008/18)

The Health and Safety (Fees) Regulations ( Northern Ireland) 2008(S.R. 2008/21)

Salaries (Assembly Ombudsman and Commissioner for Complaints) Order (Northern Ireland) 2008 (S.R. 2008/26)

The Eastermeade Gardens, Ballymoney (Abandonment) Order (Northern Ireland) 2008 (S.R. 2008/27)

The Less Favoured Areas (Compensatory Allowances) Regulations (Northern Ireland) 2008 (S.R. 2008/34)

The Trunk Road T15 ( Carland Bridge Realignment) Order (Northern Ireland) 2008 (S.R. 2008/36)

The Zootechnical Standards (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/37)

Travelling Expenses and Remission of Charges (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/39)

The Street Works (Inspection Fees) (Amendment) Regulations (Northern Ireland) 2008 (S.R. 2008/40)

Statutory rule laid before the Assembly but not subject to Assembly proceedings

The Employment Rights (Increase of Limits) Order (Northern Ireland) 2008 (S.R. 2008/47)

Statutory rule not required to be laid before the Assembly and not subject to Assembly proceedings

The Bluetongue Order (Northern Ireland) 2008 (S.R. 2008/38)