SESSION 2001 - 2002

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

(listed below)

DATED 22 FEBRUARY 2002

Agriculture and Rural Development

(S.R. 2001 No. 435; S.R. 2002 Nos. 6, 7, 20, 21 and 27)

Culture, Arts and Leisure

(S.R. 2002 No. 11)

Environment

(S.R. 2002 No. 8)

Health, Social Services and Public Safety Committee

(S.R. 2002 Nos. 2 and 5)

Regional Development Committee

(S.R. 2002 Nos. 10, 17 and 18)

Social Development Committee

(S.R. 2002 Nos. 14, 16 and 31)

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 Agriculture and Rural Development Committee to the Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 435) on the ground that they are defectively drafted in two respects: the first concerns the penalty for the offence created by regulation 14(10); the second concerns the purpose of paragraph 6 of Schedule 3.
4. Regulation 14(10) creates an offence (failure to attend hearing or refusal to give evidence or produce evidence) but does not prescribe a penalty: instead, the penalty is tacked onto another (differently constituted) offence in regulation 21 (offence of procuring a decision by supplying false information, etc.). When I raised this point with the Department, I received the following response―

"You have suggested that the fact that penalty for contravention of Article 14(10) [sic] is "tacked onto" the penalty for another offence in regulation 21 constitutes a drafting defect. While it is correct that these are different offences, the policy is that the penalty for both offences should be the same. Therefore it is economical that a paragraph specifying the penalties for one offence should specify the same penalties for the other. We can see no objection in principle to this at all.".

5. There seems to be a non sequitur in the Department's reasoning here: it does not logically follow that because the policy is that the penalties for two different offences should be the same then it is necessarily appropriate to include the penalty for one offence in a provision dealing with the other one. But leaving that aside, taking the drafting structure of the Regulations as a whole, offences are created in regulations 14 (10), 19, 20, 21 and 23: for internal consistency, if for no other reason, it would clearly have been much better drafting to have set out the penalty for that offence in regulation 14(10) itself or in the next following paragraph. The penalty for the offence created by regulation 14(10) (found far removed in regulation 21(2)) has all the appearance of having been added as an afterthought. I observe in passing that a similar offence does not appear on the face of the corresponding English Regulations (S.I. 2001/3966, regulation 15) because those Regulations instead referentially attract for that purpose certain provisions of the Local Government Act 1972 relating to the holding of local inquiries.
6. Of course, as a general rule, it is self-evident that criminal offences and penalties should be stated with as much clarity and precision as possible, and I consider it worthwhile to highlight this as guidance to the Department of Agriculture and Rural Development (and to Departments generally). So Departments need to take care in devising suitable drafting structures.
7. I queried the purpose of paragraph 6 of Schedule 3: it seems to me to cover in effect the same ground as regulation 14(1)(c), especially in the wake of a point conceded to me by the Department.
8. Regulation 14, so far as is relevant, is in the following terms

"14.―(1) The following persons that is to say

.

(c) a person on whom a notice of a decision has been served in accordance with paragraph (3) of Schedule 3,

may by notice to the Department appeal against the . decision . in accordance with this regulation.".

Paragraph 6 of Schedule 3 merely states

"6. Regulation 14 shall apply to a decision made in accordance with

paragraphs [sic] 3 or 5."

9. In explaining to me the purposes of paragraphs 3 and 5 of Schedule 3 (in response to my probing as to why regulation 14(1)(c) did not contain a reference to paragraph 5 of Schedule 3), the Department conceded that paragraph 6 of Schedule 3 should have referred to paragraph 3 only and not to paragraph 5. In the wake of that concession, I suggested to the Department that paragraph 6 was otiose: it does not serve any useful purpose beyond what is already stated in regulation 14 itself. I invited the Department to make further observations on the point but it has not done so to date. Accordingly, I consider that paragraph 6 of Schedule 3 has no useful purpose.
10. I draw the attention of the Assembly and the Agriculture and Rural Development Committee to these Regulations accordingly on the ground that they are defectively drafted in two respects. Having said that, I am happy to report that the Department appears to have picked up a criticism made by the Joint Committee of both Houses of Parliament on Statutory Instruments (Session 2001-2002 Seventeenth Report) in relation to regulation 10(1) of the corresponding English Regulations (S.I. 2001/3966).
11. I draw the attention of the Assembly and the Agriculture and Rural Development Committee to the Fisheries and Aquaculture Structures (Grants) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 6) merely on the ground that they impose a charge on the public revenues and I am satisfied that that they do so under sufficient statutory authority.
12. Subject to the points set out in paragraphs 3 to 11, 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

22 February 2002

APPENDIX

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

Environmental Impact Assessment (Uncultivated Land and Semi-Natural Areas) Regulations (Northern Ireland) 2001 (S.R. 2001 No. 435)

General Dental Services (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 2)

Optical Charges and Payments (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 5)

Fisheries and Aquaculture Structures (Grants) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 6)

The Potatoes Originating in Germany (Notification) Order (Northern Ireland) 2002 (S.R. 2002 No. 7)

Motor Vehicles (Authorised Weight) (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 8)

The Street Works (Register, Notices, Directions and Designations) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 10)

Fisheries (Amendment) Byelaws (Northern Ireland) 2002 (S.R. 2002 No. 11)

The Social Fund (Maternity and Funeral Expenses) (General) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 14)

The Income Support (General) (Standard Interest Rate Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 16)

Upper Knockbreda Road, Castlereagh (Abandonment) Order (Northern Ireland) 2002

(S.R. 2002 No. 17)

Park Street, Ballyclare (Abandonment) Order (Northern Ireland) 2002 (S.R. 2002 No. 18)

Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 20)

Plant Protection Products (Amendment) Regulations (Northern Ireland) 2002

(S.R. 2002 No. 21)

Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 27)

The Social Security(Attendance Allowance and Disability Living Allowance) (Amendment) Regulations (Northern Ireland) 2002 (S.R. 2002 No. 31)