Northern Ireland Assembly Flax Flower Logo

SESSION 2001 - 2002

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

(listed below)
DATED 25 JANUARY 2002

Agriculture and Rural Development Committee

(S.R. 2001 No. 437)

Culture, Arts and Leisure Committee

(S.R. 2001 No. 433)

Enterprise, Trade and Investment Committee

(S.R. 2001 No. 422)

Health, Social Services and Public Safety Committee

(S.R. 2001 Nos. 428, 429 and 434)

  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 are subject to negative resolution.
  3. I draw the attention of the Assembly and the Enterprise, Trade and Investment Committee to the Biocidal Products Regulations (Northern Ireland) 2001 (S.R. 2001 No. 422) by reference to a report of the Joint Committee of both Houses of Parliament on Statutory Instruments which criticised the drafting of similar Regulations for Great Britain on two points. In essence, the Joint Committee criticised the drafting of regulations 8(5) and 25(6) of the Regulations for Great Britain on the basis that those provisions contained criminal offences which were not formulated in sufficiently precise terms. The Department of Enterprise, Trade and Investment has taken on board one of the Joint Committee's points (on regulation 25(6)) but not the other (on regulation 8(5)).
  4. The Joint Committee reported on the similar Regulations for Great Britain (the Biocidal Products Regulations 2001 S.I. 2001/880) in the following terms in its Third Report for the Session 2001-2002 (17 July 2001):

"BIOCIDAL PRODUCTS REGULATIONS 2001 (S.I. 2001/880)

  1. The Committee draws these Regulations to the attention of both Houses on the ground that in two respects they are defectively drafted.
  2. The Regulations implement as regards Great Britain Directive 98/8 of the European Parliament and the Council concerning the placing on the market and use of biocidal products.
  3. Regulation 8(5) prohibits the use of certain biocidal products unless the product is used "in a manner which involves the rational application of a combination of physical, biological, chemical or other measures as appropriate to limit the use of biocidal products to the minimum necessary for the effective control of target organisms". Schedule 11 makes failure to comply with this duty an offence. The Committee asked the Department of the Environment, Transport and the Regions to explain how a person subject to this duty can be expected to establish, with sufficient certainty to avoid criminal liability, that he has met this requirement.
  4. The Department in its memorandum, printed in Appendix 2, refers to the facts that the Directive requires the United Kingdom to prescribe that biocidal products are to be "properly used" and that the Directive defines that expression in the terms of regulation 8(5) set out above, and adds that where appropriate the United Kingdom is obliged to make provision to enforce duties imposed by directives. The Department also says that it is working with industry to produce guidance on this issue.
  5. In the Committee's view it is not consistent with United Kingdom legislative practice to attach a criminal sanction to such an imprecise duty. The Department was not required to make a breach of regulation 8(5) an offence. If it wished to provide a criminal sanction for breach of the requirement that biocidal products be properly used, it should, in the Committee's view, have formulated for that purpose one or more obligations in sufficiently precise terms.The Committee, whilst welcoming the Department's intention to produce guidance (which the Committee trusts will, unlike regulation 8(5), be in plain English) notes that such guidance was apparently not available when the Regulations came into force. In any event, the Committee does not consider that guidance (whichwill not be an authoritative interpretation of the scope of the obligation imposed by regulation 8(5)) would have the effect of curing the lack of precision in the formulation of that provision. The Committee therefore reports regulation 8(5) for defective drafting.
  6. The Committee had a similar concern over regulation 25(6). This requires the holder of an authorisation under the Regulations and a new applicant for authorisation to "take all reasonable steps to reach agreement on the sharing of information" to avoid unnecessary animal testing. Failure to comply is again made an offence.The Department's memorandum simply asserts without argument that it is appropriate to attach the sanction in this case and gives examples of two obvious failures to comply with the duty. But it gives no indication as to what (if any) further steps must be taken to avoid criminal liability. In the Committee's view, regulation 25(6) is not consistent with the United Kingdom's traditional legislative practice of precision in the formulation of criminal offences, and it reports that provision for defective drafting. ".
  7. The Department of Enterprise, Trade and Investment has informed me that it considered the Joint Committee's comments very carefully in drafting the Northern Ireland Regulations and consulted with the Department in Great Britain.
  8. As regards regulation 8(5), the Department of Enterprise, Trade and Investment took the view that it was better to follow regulation 8(5) of the Great Britain Regulations in spite of the Joint Committee's criticism. I understand from the Department that the Department in Great Britain has not changed its view in light of the Joint Committee's report.
  9. As regards regulation 25(6), the Department of Enterprise, Trade and Investment was persuaded by the Joint Committee's comments and inclined to the view that regulation 25(6) should not attract criminal sanctions: so a breach of the duty imposed by regulation 25(6) of the Northern Ireland Regulations, in contrast to the Regulations for Great Britain, is not a criminal offence. I understand from the Department of Enterprise, Trade and Investment that the Department in Great Britain is, with hindsight, also so persuaded by the Joint Committee's report and intends to bring forward amending provision in further Regulations already planned for this year.
  10. Accordingly, the Department of Enterprise, Trade and Investment has accepted one of the Joint Committee's points (on regulation 25(6)), as it seems has the Department in Great Britain, namely the point on regulation 25(6). But what of the other provision (regulation 8(5))? Can a logical distinction be made between regulation 8(5) as giving rise to a criminal sanction and regulation 25(6) as not giving rise to such a sanction ?
  11. From the material I have before me (the text of the Regulations themselves, the Joint Committee's report, including the memorandum submitted to the Joint Committee by the Department in Great Britain, and observations supplied by the Department of Enterprise, Trade and Investment), the answer may lie in the contention that regulation 8(5) sets out a fairly clear cut criminal offence in the form of a prohibition, namely, that of using a biocidal product containing an active substance which is included in Annex 1B of the Directive 98/8 of the European Parliament and Council: the elements of that offence, as I have stated it in this paragraph, must be proved beyond reasonable doubt by the prosecution.
  12. The difficulty perhaps arises in the qualification of the prohibition in regulation 8(5): "[use of certain biocidal products prohibited as an offence] unless that biocidal product is used in a manner which involves the rational application of a combination of physical, biological, chemical or other measures as appropriate to limit the use of biocidal products to the minimum necessary for the effective control of target organisms.": it seems to me that the onus may well be on a defendant to establish as a defence on the balance of probabilities that he comes within the qualification of the prohibition in regulation 8(5); and note on this point Article 124 of the Magistrates' Courts (Northern Ireland) Order 1981, reversing the onus of proof, as far as summary proceedings are concerned at least (although there seems to be authority for applying the proposition to proceedings on indictment also as matters lying within the knowledge of the defendant); see also section 101 of the Magistrates' Courts Act 1980 (England and Wales) and the equivalent Scottish provision in summary proceedings; and see the decision of the House of Lords in Nimmo v. Alexander Cowan & Sons Limited [1968] AC 107; [1967] 3 All ER 187, particularly the speech of Lord Pearson. That seems to be the logic of the memorandum from the Department in Great Britain to the Joint Committee (where that Department pointed to users of biocidal products following directions on the packaging of products and official guidance and also to users taking expert advice), although the point does not seem to have been fully expressed there.
  13. I have to say that the Department of Enterprise, Trade and Investment has made the observation to me that "we also had in mind the fact that the onus is not on [a person] to establish that he has met the obligation imposed by regulation 8(5)., but rather it is for the prosecution to establish that he has not.". I invite the Department to consider that observation again in the light of what I have said in paragraphs 9 and 10 about the elements of the offence created by regulation 8(5) and the incidence of the onus of proof as between prosecution and defendant.
  14. I draw the attention of the Assembly and the Enterprise, Trade and Investment Committee to the Biocidal Products Regulations (Northern Ireland) 2001 (S.R. No. 422) accordingly and recommend that the Department of Enterprise, Trade and Investment should give further consideration to regulation 8(5) in consultation with the Department in Great Britain. Clearly, the provision is not without its difficulties, and the Department has observed to me that there is the prospect of further amending Regulations.
  15. I draw the attention of the Assembly and the Culture, Arts and Leisure Committee to the Fisheries (Amendment) Byelaws (Northern Ireland) 2001 (S.R. 2001 No. 433) on the ground that there is a clear breach of the 21-day rule (that is to say, the long-established rule of practice whereby a rule-making authority should allow at least 21 days between laying before the Assembly and the coming into operation of the statutory rule): the Byelaws were made on 18 December, laid on 21 December 2001 and came into operation on 1 January 2002.
  16. The Department, when laying the Byelaws, explained the breach of the 21-day rule in the following terms:

"Unfortunately, it has been necessary to breach the 21-day rule in relation to the laying of the Rule and the date of its commencement. The Rule must come into operation on 1st January 2002 as the Fisheries Conservancy Board's licence duties for 2002 apply for that date [and] new licence duties are introduced from 1st January 2002 for disabled anglers. While drafting the byelaws commenced early in 2001, policy decisions on the rates of duties that were to apply in 2002 were not finalised until early October 2001, at which time the draft byelaws were submitted to Departmental Solicitor's Office for scrutiny. DSO cleared the byelaws on 12 December and proofs were ordered on that date.".

  1. Mindful of the concern expressed by the Business Committee on 20 November 2001 about breaches of the 21-day rule (see the minutes of that Committee), I suggested to the Department of Culture, Arts and Leisure that the Department could, from the information provided in its covering letter to the Business Office, have handled the statutory rule differently so as to have avoided the breach: it must have at all times been known that 1st January 2002 was the suitable commencement date. I suggested that the Department could, for example, have submitted a working draft of the byelaws to its solicitors at an earlier stage. I made the further observation that Departments should generally avoid citing clearance by their legal advisers as an explanation for the timing of a statutory rule, since in the eyes of the Assembly Departments and their legal advisers are regarded as one in the same thing as far as the drafting on a statutory rule is concerned.
  2. In response to my remarks the Department has noted my suggestions and has indicated that it will put them into practice when drafting future statutory rules. The Department has also indicated to me that "it is taking steps to put into place, with the agreement of other bodies involved in the drafting process, a timetable to ensure that further breaches of the 21-day rule are avoided.". This is plainly to be welcomed.
  3. I draw the attention of the Assembly and the Culture, Arts and Leisure Committee to the Fisheries (Amendment) Byelaws (Northern Ireland) 2001 (S.R. 2001 No. 433) accordingly.
  4. Subject to the points set out in paragraphs 3 to 17, 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

25 January 2002

APPENDIX

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

Biocidal Products Regulations (Northern Ireland) 2001 (S.R. 2001 No. 422)

Feeding Stuffs (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 428)

Poultry Meat, Farmed Game Bird Meat and Rabbit Meat (Hygiene and Inspection) (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 429)

Fisheries (Amendment) Byelaws (Northern Ireland) 2001 (S.R. 2001 No. 433)

The Road Traffic (Health Services Charges) (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 434)

Plant Health (Amendment) Order (Northern Ireland) 2001 (S.R. 2001 No. 437)