SESSION 2001 - 2002

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

(listed below)
DATED 15 NOVEMBER 2001

Agriculture and Rural Development Committee

(S.R. 2001 Nos. 327, 328, 329, 330, 331, 332,
349, 362, 363, 379, 391 and 394)

Environment Committee

(S.R. 2001 Nos. 364, 365, 366, 372 and 375)

Health, Social Services and Public Safety Committee

(S.R. 2001 Nos. 339, 341, 348, 367, 368, 370, 374 and 376)

Regional Development Committee

(S.R. 2001 Nos. 333, 334, 335, 338, 343, 344, 345, 346, 347,
350, 351, 352, 353, 354, 355, 380, 381, 382, 383, 384 and 385)

Social Development Committee

(S.R. 2001 Nos. 373, 386 and 392)

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 (to which I refer as the First Report of the Examiner of Statutory Rules to the Assembly and the appropriate Committees, since it is the first report under the new arrangements) 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. As soon as practicable, I will publish it accordingly on the Assembly Website (Homepage of the Examiner of Statutory Rules).
2. All of these statutory rules, except S.R. Nos. 2001 Nos. 341, 349 and 368, are subject to negative resolution; S.R. 2001 Nos. 341, 349 and 368 are subject to confirmatory procedure.
3. I draw the attention of the Assembly and the Agriculture and Rural Development Committee to the following statutory rules, namely―

the Vegetable Seeds (Amendment) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 327);

the Oil and Fibre Plant Seeds (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 328);
the Fodder Plant Seeds (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 329);
the Cereal Seeds (Amendment) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 330); and
the Beet Seeds (Amendment) Regulations (Northern Ireland) 2001

(S.R. 2001 No. 331),

on the ground that they are all defectively drafted in one minor respect, as acknowledged by the Department of Agriculture and Rural Development. Each of those statutory rules inserts in the principal Regulations which it amends a definition of "marketing" (in regulation 2(4) or, in the case of S.R. 201 No. 329, regulation 2(5)). The definition concludes with the words "; and "market" and "marketed" shall be construed accordingly": those words are unnecessary in view of section 35 of the Interpretation Act (Northern Ireland) 1954 (corresponding meanings of parts of speech); the principal Regulations previously omitted those words in the earlier definition of "marketing". The Department has indicated that it intends to make appropriate amendments at a suitable opportunity, and in the meantime they do no harm.

4. I draw the attention of the Assembly and the Agriculture and Rural Development Committee to the Rural Development (Financial Assistance) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 332) on the ground that they impose a charge on the public revenues, but I am satisfied that there is clearly authority to do so.
5. I draw the attention of the Assembly and the Health, Social Services and Public Safety Committee to the General Opthalmic Services (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 339) on the ground that they breach the 21-day rule (that is, the long established rule of practice whereby the rule-making authority allows at least 21 days between the laying of a statutory rule and its coming into operation): the Health, Social Services and Public Safety Committee had already expressed concern about this and other points in its consideration of the Regulations prior to their making. The Department of Health, Social Services and Public Safety has in essence explained that it missed the making of corresponding regulations for England, which came into force on 10 April 2001, so it was clearly in a hurry to make these Regulations on 2 October 2001 to come into operation on 12 October 2001. The Department has indicated that it liaises closely on matters such as these with the Department of Health and that it has revised its systems to ensure that it does not miss out similarly in future.
6. I draw the attention of the Assembly and the Agriculture and Rural Development Committee to the Fishing Vessels (Decommissioning) Scheme (Northern Ireland) 2001 (S.R. 2001 No. 349) on the ground that it imposes a charge on the public revenues, but I am satisfied that there is clearly authority to do so.
7. I also draw attention to the Fishing Vessels (Decommissioning) Scheme on the ground that the Scheme is defectively drafted in several places in minor respects, as acknowledged for the most part by the Department of Agriculture and Rural Development.
8. The concluding words in the definition of "decommissioning" in Article 2(1)) ("and "decommissioned" and "decommissioning grant" shall be construed accordingly;") are unnecessary because of section 35 of the Interpretation Act (Northern Ireland) 1954. Related to this, the Scheme variously uses the term "grant" (defined in Article 2(1)) and "grant aid" (not defined), whereas the same meaning seems to be intended. These points seem to me to be in the nature of drafting defects.
9. The Department acknowledges my points, except that it maintains that "decommissioning grant" (defined in the definition of "grant") is more than a grammatical variation of decommissioning, and I accept on reflection that there is some force in this. The Department has indicated that it will take these points on board if the Scheme is re-enacted in the future, and I accept that they are small points and that the scheme can operate in a workable manner.
10. I draw the attention of the Assembly and the Agriculture and Rural Development Committee to the following statutory rules, namely―

the Suckler Cow Premium Regulations (Northern Ireland) 2001

(S.R. 2001 No. 362); and

the Beef Special Premium Regulations (Northern Ireland) 2001

(S.R. 2001 No. 363),

on the ground that they breach the 21-day rule. The Department of Agriculture and Rural Development has explained the breach on the basis that the early commencement facilitates the advance payment of the premiums in each case, and this appears to be reasonable in the circumstances. It might perhaps have been better in this case if the Department had laid the Regulations in typescript (in accordance with the recent revised guidance circulated to Departments) rather than wait for the final printed version, since the Regulations were in fact laid on the same day as they came into operation: it is important to emphasise that, save in exceptional circumstances, statutory rules should be laid before they come into operation; and the exceptional circumstances for not laying before the coming into operation should be communicated to the Examiner of Statutory Rules, say, in the covering letter to the Assembly Business Office, so that the Examiner can report accordingly to the Assembly and the appropriate Committee. This matter is set out in the revised guidance to Departments on the laying of statutory rules, which guidance I endorse and commend to Departments: it is clear to me from preparing this report that some Departments are more aware of the revised guidance than others; and accordingly, I will ask the Office of the First Minister and deputy First Minister to issue a reminder to Departments about the guidance.

11. I draw the attention of the Assembly and the Health, Social Services and Public Safety Committee to the Health and Personal Social Services (Injury Benefits) Regulations (Northern Ireland) 2001 (S.R. 2001 No 367) on the ground that they are defectively drafted in two places, as acknowledged by the Department of Health, Social Services and Public Safety.
12. First, at the end of regulation 3(1)(j)(ii) there should be a comma instead of a full stop (since the sentence continues); and the final three lines of regulation 3(1) should be full out to the left margin (since those words apply to all of sub-paragraphs (a) to (j) and not to sub-paragraph (j) alone― cf regulation 10(1)).
13. And second, at the end of regulation 10(1)(b) there should be a comma instead of a full stop (since the sentence continues).
14. These points are illustrations of the importance of the need to take care with punctuation and layout in legislative drafting: punctuation and layout are important because they can affect the meaning of provisions; and slips like these can occur only too easily.
15. I draw attention to the following statutory rules, namely
    the Social Fund Winter Fuel Payment Regulations (Northern Ireland) 2001

(S.R. 2001 No. 373); and

the Social Fund Cold Weather Payments (General) (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 386),

on the ground that they breach the 21-day rule. The Department for Social Development has indicated that it was necessary for these Regulations to come into operation on 2 November 2001 and 1 November 2001, respectively, to maintain parity with the corresponding regulations for Great Britain, and that final decisions were not taken until the dates when the Regulations were made (16 October 2001 and 19 October 2001, respectively). This explanation appears to be satisfactory and there was no delay in laying the statutory rules.

16. I draw the attention of the Assembly and the Health, Social Services and Public Safety Committee to the General Medical Services (Amendment No. 4) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 374) on the ground that they breach the 21-day rule. The Department of Health, Social Services and Public Safety has explained the breach as being necessary to maintain parity with the rest of the United Kingdom; and indeed the corresponding statutory instrument for England, made five days earlier, seems to have breached the 21-day rule, as it applies to the United Kingdom Parliament, also. In the circumstances there seems to be a reasonable explanation for the breach. On my advice, and in accordance with the revised guidance on the laying of statutory rules, the Department laid the statutory rule in typescript rather than waiting for the final print, so that the statutory rule was laid before it came into operation.

17. I draw the attention of the Assembly and the Environment Committee to the Road Traffic Offenders (Additional Offences and Prescribed Devices) Order (Northern Ireland) 2001 (S.R. 2001 No. 375) on the ground that it appears to be an unusual or unexpected exercise of statutory powers, even if it is intra vires (as I accept that it may well be, given the unqualified nature of the power, as pointed out to me by the Department of the Environment). Similar provision is, as the Department has pointed out, made for Great Britain by S.I. 2001/1814 under similar statutory powers, namely, section 20 of the Road Traffic Offenders Act 1988, as amended.
18. The Order essentially extends the use of evidence obtained by speed cameras and related technology to the offence of using or keeping an unlicensed vehicle on a public road under section 29(1) of the Vehicle Excise and Registration Act 1994; whereas the existing offences to which Article 23 of the Road Traffic Offenders (Northern Ireland) Order 1996 ("the Offenders Order") applies are moving road traffic offences, more strictly so-called (for example speeding, disregarding traffic signals or improperly using a hard shoulder bus lane).
19. The natural place for provision such as is contained in the Order (which introduces provision into the Offenders Order) would, it seems to me, be a provision in the Vehicle Excise and Registration Act 1994 itself rather than using a power in road traffic legislation, and I suggested to the Department that it might consider raising the point with the Department for Transport, Local Government and the Regions, presumably the lead Department in respect of the 1994 Act, which extends to the United Kingdom as a whole: for the longer term, provision dealing with the subject-matter of the Order might perhaps be better included in, say, a future Finance Bill introduced in the United Kingdom Parliament.
20. It is not authoritative, but interestingly, while Statutes in Force classifies the Vehicle Excise and Registration Act 1994 under Road Traffic, Halsbury's Statutes classifies it under Customs and Excise; it seems to me that it, taken with the subject-matter of the statutory rule, is more an adjunct to taxation legislation than to road traffic legislation, and so I draw attention to the statutory rule accordingly.
21. I draw the attention of the Assembly and the Agriculture and Rural Development Committee to the Farm Subsidies (Review of Decisions) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 391) on the ground that they breach the 21-day rule. The Department has explained, not entirely satisfactorily in my view, that the breach was because of the time taken to print them. It seems to me that the Department allowed just over 21 days between making and coming into operation, and that it could have avoided (or at least largely minimised) the breach of the 21-day rule by laying in typescript in accordance with the revised guidance on laying of statutory rules, to which I have referred to above at paragraphs 10 and 16.
22. Subject to the points set out in paragraphs 2 to 21, 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
15 November 2001

APPENDIX

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

Vegetable Seeds (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 327)
Oil and Fibre Plant Seeds (Amendment) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 328)

Fodder Plant Seeds (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 329)

Cereal Seeds (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 330)

Beet Seeds (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 331)

Rural Development (Financial Assistance) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 332)

Trunk Road T9 (Doagh Road to Coleman's Corner) Order (Northern Ireland) 2001
(S.R. 2001 No. 333)

Trunk Road T9 (Millbrook and Antiville) Order (Northern Ireland) 2001 (S.R. 2001 No. 334)

Trunk Road T9 (Ballynure) Order (Northern Ireland) 2001 (S.R. 2001 No. 335)

Street Works (Sharing of Costs of Works) (Amendment) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 338)

General Opthalmic Services (Amendment) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 339)

Food Protection (Emergency Prohibitions No. 2) Order (Northern Ireland) 2001
(S.R. 2001 No. 341)

Back Street at Grampian Avenue, Belfast (Abandonment) Order (Northern Ireland) 2001
(S.R. 2001 No. 343)

Route A31 Magherafelt Road, Moneymore (Abandonment) Order (Northern Ireland) 2001
(S.R. 2001 No. 344)

Route A5 Beltany Road, Newtownstewart (Abandonment) Order (Northern Ireland) 2001
(S.R. 2001 No. 345)

Back Street at Wilgar Avenue, Belfast (Abandonment) Order (Northern Ireland) 2001
(S.R. 2001 No. 346)

Westland Road South, Cookstown (Abandonment) Order (Northern Ireland) 2001
(S.R. 2001 No. 347)

Fire Precautions (Workplace) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 348)

The Fishing Vessels (Decommissioning) Scheme (Northern Ireland) 2001
(S.R. 2001 No. 349)

Route U2209 Old Crebilly Road, Ballymena (Abandonment) Order (Northern Ireland) 2001
(S.R. 2001 No. 350)

Church Street, Ballymena (Stopping-Up) (Revocation) Order (Northern Ireland) 2001
(S.R. 2001 No. 351)

Route A1 Belfast, Newry (Abandonment) Order (Northern Ireland) 2001 (S.R. 2001 No. 352)

Glenbush Drive, Portrush (Stopping-Up) Order (Northern Ireland) 2001 (S.R. 2001 No. 353)

Route B3 Markethill Road, Tandragee (Abandonment) Order (Northern Ireland) 2001
(S.R. 2001 No. 354)

Caldwell Park, Portrush (Abandonment) Order (Northern Ireland) 2001 (S.R. 2001 No. 355)

Suckler Cow Premium Regulations (Northern Ireland) 2001 (S.R. 2001 No. 362)

Beef Special Premium Regulations (Northern Ireland) 2001 (S.R. 2001 No. 363)

Motor Vehicle Testing (Amendment) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 364)

Goods Vehicles (Testing) (Amendment) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 365)

Public Service Vehicles (Amendment) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 366)

The Health and Personal Social Services (Injury Benefits) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 367)

Food Protection (Emergency Prohibitions No. 3) Order (Northern Ireland) 2001
(S.R. 2001 No. 368)

Optical Charges and Payments and General Opthalmic Services (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 370)

Road Vehicles Lighting (Amendment No. 2) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 372)

The Social Fund Winter Fuel Payment (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 373)

General Medical Services (Amendment No. 4) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 374)

Road Traffic Offenders (Additional Offences and Prescribed Devices) Order (Northern Ireland) 2001 (S.R. 2001 No. 375)

Specified Risk Material (Amendment No. 3) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 376)

Strangford Lough (Prohibition of Fishing for Shellfish) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 379)

Route B127 Ballyconnell Road, Derrylin (Abandonment) Order (Northern Ireland) 2001
(S.R. 2001 No. 380)

Route DR129 Foyle Avenue, Greysteel (Abandonment) Order (Northern Ireland) 2001
(S.R. 2001 No. 381)

Rowland Way, Belfast (Abandonment) Order (Northern Ireland) 2001 (S.R. 2001 No. 382)

Route C154 Tandragee Road, Craigavon (Abandonment) Order (Northern Ireland) 2001
(S.R. 2001 No. 383)

Lindenwood Park, Londonderry (Abandonment) Order (Northern Ireland) 2001
(S.R. 2001 No. 384)

Route A26 Larne Road Link (Abandonment) (No. 3) Order (Northern Ireland) 2001
(S.R. 2001 No. 385)

The Social Fund (Cold Weather Payments) (General) (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 386)

Farm Subsidies (Review of Decisions) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 391)

The Social Security (Capital Disregards Amendment No. 3) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 392)

Drainage (Environmental Impact Assessment) Regulations (Northern Ireland) 2001
(S.R. 2001 No. 394)