Northern Ireland Assembly Flax Flower Logo

SESSION 2001 - 2002

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

(listed below)

DATED 1 FEBRUARY 2002

Enterprise, Trade and Investment Committee

(S.R. 2001 No. 436)

Health, Social Services and Public Safety Committee

(S.R. 2001 No. 431 and S.R. 2002 No. 1)

Social Development Committee

(S.R. 2001 Nos. 440 and 441)

  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. 2001 No. 441, are subject to negative resolution; S.R. 2001 No 441 is subject to confirmatory procedure.
  3. I draw the attention of the Assembly and the Health, Social Services and Public Safety Committee to the Misuse of Drugs (Designation) Order (Northern Ireland) 2001 (S.R. 2001 No. 431) on the ground that it is defectively drafted in several (relatively minor) respects, as acknowledged by the Department of Health, Social Services and Public Safety.
  4. The drafting defects I have identified are as follows.
  5. First, in Article 3 the words "to this Order" following "Schedule" are unnecessary because of the Interpretation Act (Northern Ireland) 1954 (see section 11(6)), applied in regulation 2.
  6. Second, Article 2 should have referred to "an Act" of the Northern Ireland Assembly rather than to "a Measure": this has been the proper drafting practice since 2 December 1999, when the main provisions of the Northern Ireland Act 1998 (particularly Parts II and III) came into force; there are no longer Measures of the Assembly.
  7. Third, the Schedule is wrongly headed "Schedule 1".
  8. Fourth, the shoulder reference is wrongly to "Article 2": it should be to "Article 3".
  9. The Department has indicated that it will bring forward amendments to correct the defects at "the earliest convenient opportunity". I draw the attention of the Assembly and the Health, Social Services and Public Safety Committee to the Misuse of Drugs (Designation) Order (Northern Ireland) 2001 (S.R. 2001 No. 431) accordingly on the ground that it is defectively drafted as acknowledged by the Department.
  10. I draw the attention of the Assembly and the Enterprise, Trade and Investment Committee to the Radiation (Emergency Preparedness and Public Information) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 436) on the ground that they are defectively drafted, as acknowledged by the Department of Enterprise, Trade and Investment, by reference to a report of the Joint Committee of both Houses of Parliament on Statutory Instruments. The Joint Committee criticised the drafting of similarly drafted Regulations for Great Britain (namely, the Radiation (Emergency Preparedness and Public Information) Regulations 2001 (S.I. 2001/2975)). With respect, I find the criticisms to be persuasive as regards the Regulations for Northern Ireland.
  11. The Joint Committee reported as follows in its Eleventh Report for the Session 2001-2002 (27 November 2001):

      "RADIATION (EMERGENCY PREPAREDNESS AND PUBLIC INFORMATION) REGULATIONS 2001 (S.I. 2001/2975)

    1. The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted.

    2. Regulation 3(1) provides that, subject to regulation 17, the Regulations apply to specified kinds of work with ionising radiation. The Committee was unable to see how regulation 17 (which requires local authorities to prepare and keep up to date arrangements to supply information to the public in the event of a radiation emergency) limits the general effect of regulation 3(1). In its first memorandum, printed at Appendix 3, the Department of Trade and Industry states that regulation 17 is intended to apply to any radiation emergency, whether or not arising from work with ionising radiation. In the Committee's view this intention is not clearly conveyed by regulation 3(1), whose wording implies that regulation 17 narrows the scope of the Regulations, as defined by regulation 3. The position would be made clear if regulation 3 defined the circumstances to which the Regulations, with the exception of regulation 17, apply. The Committee therefore reports regulation 3(1) for defective drafting.
    3. Regulation 18 is headed "modifications relating to the Ministry of Defence, etc". Paragraph (2) of that regulation permits the Secretary of State for Defence, in the interests of national security, by a certificate in writing to exempt (among others) Her Majesty's Forces, or any person engaged in work with ionising radiation for or on behalf of the Secretary of State for Defence, from all or any of the requirements of the Regulations. Paragraph (3) states:

      "The requirements of regulation 14 shall not have effect to the extent that this regulation would in the opinion of the Secretary of State for Defence be against the interests of national security".

    4. The Committee had a number of concerns about this paragraph. The words "this regulation" properly refer to regulation 18 itself but, as the Department explains in its first memorandum, were intended to refer to regulation 14. Also, it is not regulation 14 itself which could be against the interests of national security, but compliance with its requirements. The provision is defectively drafted in these respects.

    5. More importantly, regulation 14 imposes duties on employers who control premises where radioactive substances are present or who are engaged in transporting such substances. It was not clear to the Committee how such employers could be expected to know whether, and if so to what extent, the Secretary of State for Defence had formed the opinion that the requirements of that regulation should not apply. In its first memorandum the Department states that the circumstances which, and the classes of people who, would be covered by any such disapplication will be set out in internal Ministry of Defence documentation to which those personnel have access. The Department did not, however, explain how regulation 18(3) would work in relation to persons other than the armed forces or employers carrying on activities under the auspices of the Ministry of Defence.

    6. In a further memorandum, also printed at Appendix 3, the Department state that the power in regulation 18(3) is intended to be applied only in relation to certain members of Her Majesty's Forces, accepts that the drafting of the provision goes wider than this, and undertakes to make an appropriate amendment at the earliest available opportunity. The Committee therefore reports regulation 18(3) for defective drafting, acknowledged in part by the Department.

    7. Regulation 19 applies enforcement provisions of the Health and Safety at Work etc. Act 1974 to regulation 21. That regulation states: "The Regulations referred to in Schedule 11 shall be amended in accordance with the provisions of that Schedule." The Committee did not understand how the enforcement provisions of the 1974 Act could apply to regulation 21. In its first memorandum the Department states that, as that regulation (so far as it amends the Ionising Radiations Regulations 1999) is made under section 2(2) of the European Communities Act 1972 and not the 1974 Act, regulation 19 allows the amended provisions of the 1999 Regulations to be enforced as if made under the 1974 Act. The Committee does not agree with the Department's analysis. As regulation 21 does no more than amend other instruments it is not possible for its provisions to be enforced under the 1974 Act. To apply the enforcement provisions of that Act to the 1999 Regulations an appropriate provision should be inserted in those Regulations - as indeed is done by paragraph 5 of Schedule 11 to this instrument. The Committee therefore reports regulation 19 for defective drafting.".
  1. I find the Joint Committee's criticisms to be persuasive. But, in fairness to the Department of Enterprise, Trade and Investment, the Joint Committee's report was made when drafting was all but finally settled: the report was made on 27 November 2001; S.R. 2001 No 436. was made on 20 December 2001 "and the Department was under intense pressure to follow [the Regulations for Great Britain]" in order to implement the relevant EC Directive for Northern Ireland. The correspondence between the Joint Committee and the Department in Great Britain did not arise until November 2001.
  2. The Department of Enterprise, Trade and Investment now acknowledges the defects as recorded in the Joint Committee's report as, I understand, does the Department in Great Britain. The Department has therefore indicated that it intends to bring forward the necessary amendments in a further radiation-linked statutory rule scheduled for making later this year. Accordingly, I draw the attention of the Assembly and the Enterprise, Trade and Investment Committee to the Radiation (Emergency Preparedness and Public Information) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 436) on the ground that they are defectively drafted as acknowledged by the Department of Enterprise, Trade and Investment.
  3. I draw the attention of the Assembly and the Health, Social Services and Public Safety to the Misuse of Drugs Regulations (Northern Ireland) 2002 (S.R. 2002 No. 1) on the ground that they are defectively drafted in a number of respects as acknowledged by the Department of Health, Social Services and Public Safety; and the Department intends to correct the defects at "the earliest convenient opportunity". I should perhaps say that the first two points I make (see paragraphs 16 and 17) apply in a similar way to the corresponding regulations for Great Britain (namely, the Misuse of Drugs Regulations 2001 (S.I. 2001/3998)) and I have drawn these points to the attention of the Legal Advisers to the Joint Committee on both Houses of Parliament on Statutory Instruments.
  4. The points I have identified are as follows.
  5. First, "document" is defined in regulation 2(2) by reference to Part I of the Civil Evidence Act (Northern Ireland) 1971: Part I of the 1971 Act was repealed by the Civil Evidence (Northern Ireland) Order 1997. (Similarly in the Regulations for Great Britain, Part I of the Civil Evidence Act 1968 was repealed by the Civil Evidence Act 1995.)
  6. Second, the reference in regulation 6(7)(c) to "a person engaged in the business of the Post Office" does not take account of the Postal Services Act 2000 and the new regime for the provision of postal services, on which there have been developments as recently as this week: the Department has observed that in practice the transportation of controlled drugs is likely to come within regulation 6(7)(b) ("a person engaged in the business of a carrier"), but it nevertheless intends to correct the defect in regulation 6(7)(c).
  7. And third, in Schedule 7 (Regulations revoked) all the references should be to "S.R.": some of the references are wrongly to "S.I.".
  8. I draw attention to the Misuse of Drugs Regulations (Northern Ireland) 2002 (S.R. 2002 No. 1) accordingly on the ground that they are defectively drafted, as acknowledged by the Department.
  9. Subject to the points set out in paragraphs 3 to 19, 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

1 February 2002

APPENDIX

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

Misuse of Drugs (Designation) Order (Northern Ireland) 2001 (S.R. 2001 No. 431)

Radiation (Emergency Preparedness and Public Information) Regulations (Northern Ireland) 2002 (S.R. 2001 No. 436)

The Additional Pension and Social Security Pensions (Home Responsibilities) (Amendment) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 440)

The Social Security (Inherited SERPS) Regulations (Northern Ireland) 2001

(S.R. 2001 No. 441)

Misuse of Drugs Regulations (Northern Ireland) 2002 (S.R. 2002 No. 1)