Northern Ireland Assembly Flax Flower Logo

SESSION 2001 - 2002

EIGHTH REPORT OF THE EXAMINER OF STATUTORY RULES
TO
THE ASSEMBLY
AND
THE APPROPRIATE COMMITTEES

(listed below)

DATED 8 MARCH 2002

Agriculture and Rural Development

(S.R. 2002 Nos. 29, 30 and 53)

Employment and Learning

(S.R. 2002 No. 24)

Enterprise, Trade and Investment

(S.R. 2002 Nos. 34 and 36)

Environment

(S.R. 2002 Nos. 47, 48, 49, 50 and 51)

Health, Social Services and Public Safety Committee

(S.R. 2002 No. 52)

Regional Development Committee

(S.R. 2002 Nos. 40, 41 and 42)

Social Development Committee

(S.R. 2002 No. 58)

  1. In accordance with the revised delegations under Standing Order 41 given to the Examiner of Statutory Rules by the appropriate Committees in October and November 2001, I submit my report on the statutory rules listed in the Appendix. At the same time,I am sending a copy of this report to each of the Departments concerned.

  2. All of these statutory rules, except S.R. 2002 Nos. 40, 41 and 42, are subject to negative resolution; S.R. 2002 Nos. 40, 41 and 42 (various Harbour Orders), are subject to affirmative resolution.

  3. I draw the attention of the Assembly and the Agriculture and Rural Development Committee to the Marketing of Quality Agricultural Products Grant Regulations (Northern Ireland) 2002 (S.R. 2002 No. 29) and the Agricultural Processing and Marketing Grant Regulations (Northern Ireland) 2002 (S.R. 2002 No. 30) on the ground that they are defectively drafted in several respects as in effect acknowledged by the Department of Agriculture to a large extent.
  4. I raised three points with the Department.
  5. Ideally, for overall consistency, both regulations 4 and 5 should have had headings since they are drafted as two separate regulations rather than one covering the whole approval procedure: regulation 4 is about applications for approval; regulation 5 is about approval itself. On that point, the Department observed-

    "[T]he Department considers that the heading "approval of expenditure" is apt to cover both the application for…approval and the granting of it. Moreover we are unaware of any reason why a single heading cannot cover two or more regulations.".

    This point is a small one but it is clearly better drafting to adopt a consistent structure and I mention the point for future guidance to the Department and Departments generally. In this case the Department chose to give each regulation a separate heading (apart from regulations 4 and 5); and in this case the Department chose to split the approval procedure into two regulations (which was perfectly good drafting) rather than dealing with it in one; but it did not quite follow through with two headings.

  6. Second, in regulation 11(1), I asked whether the intention to refer to paragraph (3) rather than to paragraph (2) as paragraph (3) seemed to be the main qualification on the proposition stated in paragraph (1). The Department responded-

    "[T]he Department considers that the provision was indeed intended to refer to paragraph (2) rather than paragraph (3). In its view, however, the fact that paragraph (2) while the main qualification to paragraph (1) is contained in paragraph (3) means that a court should have little difficulty in construing the Department's meaning. I can also advise that in the normal course of events very few projects transfer ownership and we do not anticipate a need to rely on this provision.".

    Plainly, the Department has in terms acknowledged that there is a drafting defect. This is no doubt something that can be corrected in amending Regulations when a suitable opportunity arises in line with the Department's intention.

  7. Third, in regulation 16(2)(b) there should surely have been a reference to summary conviction since the intention is plainly to create a summary offence punishable by a fine not exceeding level 3 on the standard scale. The Department has in effect acknowledged the point thus-

    "[I]t was never the intention of the Department for this provision to allow for an offence under paragraph (1)(b) to be triable either on indictment or summarily. The intention was that the offence should only be triable summarily. We would argue that as the provision only allows for a penalty to be imposed by reference to a level on the standard scale a court would construe the provision accordingly.".

    I agree: that indeed confirms my point. It is again something that can be corrected in amending Regulations at a suitable opportunity to bring the Regulations fully into line with the Department's intention. Once again, I stress to the Department of Agriculture and Rural Development and to other Departments that particular care needs to be taken in the drafting of provisions involving criminal offences and penalties.

  8. Accordingly, I draw attention to the Marketing of Quality Agricultural Products Grant Regulations (Northern Ireland) 2002 (S.R. 2002 No. 29) and the Agricultural Processing and Marketing Grants Regulations (Northern Ireland) 2002 (S.R. 2002 No. 30) on the ground that they are defectively drafted in several respects as acknowledged in large part by the Department of Agriculture and Rural Development. I also draw attention to these Regulations in passing on the ground that they impose a charge on the public revenues, but I am satisfied that there is sufficient statutory authority to do so.


  9. I draw the attention of the Assembly and the Enterprise, Trade and Investment Committee to the Weights and Measures (Prescribed Stamp) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 36) on the ground that it does not take account of the established drafting practice for statutory rules in one respect. The amendments introduced by the Regulations are consequential on amendments of the Weights and Measures (Northern Ireland) Order 1981 contained in the Weights and Measures Act (Northern Ireland) 2000. Accordingly, it seems to me that regulation 2 should have contained an appropriate footnote reference to the amendment of Article 9 of the 1981 Order by the 2000 Act.


  10. I draw attention the attention of the Assembly and the Regional Development Committee to the Belfast Harbour Order (Northern Ireland) 2002 (S.R. 2002 No. 40), the Londonderry Harbour Order (Northern Ireland) 2002 (S.R. 2002 No. 41) and the Warrenpoint Harbour Authority Order (Northern Ireland) 2002 (S.R. 2002 No. 42) on the ground that they are defectively drafted in several respects as acknowledged by the Department for Regional Development.


  11. First, the expression "coterminous" (which is an adjective) in paragraph 3 of Part I of the substituted Schedule 1 in each Order, namely, substituted Schedule 1 to the Belfast Harbour Acts (Amendment) Order (Northern Ireland) 1979, substituted Schedule 1 to the Londonderry Port and Harbour Commissioners Acts (Amendment) Order (Northern Ireland) 1976 and substituted Schedule 1 to the Warrenpoint Harbour Authority Order (Northern Ireland) 1971 is plainly misspelled (as "co-terminus", which looks like a noun of some sort).


  12. That brings me to the second point. The Schedules to S.R. 2002 Nos. 40, 41 and 42 contain amendments of the 1979, 1976 and 1971 Orders: they are in effect part of those earlier Orders rather than the 2002 Orders, taking the way Article 9 of each of the 2002 Orders is drafted. But the layout of each Schedule does not reflect this fully on its face: Schedule 1 to each of the 2002 Orders appears, as drafted, to be a free-standing Schedule rather than an amendment of the relevant earlier Harbour Order.


  13. I mention also that Article 1(2) and (3) of the Warrenpoint Harbour Authority Order (Northern Ireland) 2002 are not quite right. The 1973 and 1974 Orders were merely amendments of the 1971 and in substance became subsumed within the 1971 Order; and the 1974 Order's provisions have now been completely superseded (by the substituted Schedule 1 to the 1971 Order in Schedule 1).


  14. Accordingly, I draw attention to the Belfast Harbour Order (Northern Ireland) 2002 (S.R. 2002 No. 40), the Londonderry Harbour Order (Northern Ireland) 2002 (S.R. 2002 No. 41) and the Warrenpoint Harbour Authority Order (Northern Ireland) 2002 (S.R. 2002 No. 42) on the ground that they are defectively drafted in several respects (which are relatively minor) as acknowledged by the Department for Regional Development. The Department has confirmed to me that it intends to bring forward corrective amendments at the next available opportunity and I have made some suggestions to it to that end. I make the general observation that the Department should consider a more extensive exercise of repeal, revocation and re-enactment of these provisions at some stage, especially since some of the earlier Harbour Orders are not even published as statutory rules in the normal way.


  15. I draw the attention of the Assembly and the Health, Social Services and Public Safety Committee to the Road Traffic (Health Services Charges) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 52) on the ground that the Regulations break the 21-day rule (that is, the long established rule of practice in the case of statutory rules subject to negative resolution whereby the rule-making authority allows at least 21 days between the laying of the statutory rule and its coming into operation). But I am satisfied that in this case there was good reason since the Regulations merely restore the status quo ante: in effect they reverse (subject to a transitional provision) an up-rating of charges (contained in S.R. 2001 No. 435) in the wake of similar moves in England and Scotland. I understand that the Health, Social Services and Public Safety Committee is aware of the background to this. I am pleased to report that the Regulations were laid before they came into operation.


  16. Subject to the points set out in paragraphs 3 to 15, there is nothing in the statutory rules covered by this report that requires to be brought to the special attention of the Assembly and the appropriate Committees under any of the grounds mentioned in Standing Order 41(5).

W G Nabney

Examiner of Statutory Rules

8 March 2002

APPENDIX

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

Employment Rights (Increase of Limits) Order (Northern Ireland) 2002 (S.R. 2002 No. 24)

Marketing of Quality Agricultural Products Grant Regulations (Northern Ireland) 2002
(S.R. 2002 No. 29)

Agricultural Processing and Marketing Grant Regulations (Northern Ireland) 2002
(S.R. 2002 No. 30)

Carriage of Dangerous Goods (Amendment) Regulations (Northern Ireland) 2002
(S.R. 2002 No. 34)

Weights and Measures (Prescribed Stamp) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 36)

The Belfast Harbour Order (Northern Ireland) 2002 (S.R. 2002 No. 40)

The Londonderry Harbour Order (Northern Ireland) 2002 (S.R. 2002 No. 41)

The Warrenpoint Harbour Authority Order (Northern Ireland) 2002 (S.R. 2002 No. 42)

Motor Vehicle Testing (Amendment) (Fees) Regulations (Northern Ireland) 2002
(S.R. 2002 No. 47)

Goods Vehicles (Testing) (Fees) (Amendment) Regulations (Northern Ireland) 2002
(S.R. 2002 No. 48)

Public Service Vehicles (Licence Fees) (Amendment) Regulations (Northern Ireland) 2002
(S.R. 2002 No. 49)

Passenger and Goods Vehicles (Recording Equipment) (Fees) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 50)

Motor Vehicles (Driving Licences) (Amendment) (Test Fees) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 51)

The Road Traffic (Health Services Charges) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 52)

Diseases of Fish (Control) (Amendment) Regulations (Northern Ireland) 2002
(S.R. 2002 No. 53)

The Income Support (General) (Standard Interest Rate Amendment No. 2) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 58)