S.R. 2007/261: memorandum from the Office of the First and Deputy First Minister

Equality Act (Sexual Orientation) (Amendment No 2) Regulations (Northern Ireland) 2007 (S.R. 2007/261)

The Committee has requested a Memorandum from the Office of the First and Deputy First Minister in relation to a number of points arising in connection with the above Regulations.

The first question is

"(1)  Why is the only indication of the instrument which is being amended given in the headings to the Regulations and not in the body of the text?"

The Department accepts that this is in error. Regulations 2 to 7 of these Regulations should, in each case, have contained an indication of the instrument to which amendments were being made.

The second question was

"(2)  Regulations 31(3) and 32(1) of the 2006 Regulations, as read with the new definition of "prescribed", purport to confer power on the Department to make Regulations. Identify the provision which authorises this. (See paragraph 1.7 of the Committee's Sixth Report of Session 2006/2007)".

The Department accepts that there is no power in the Equality Act 2006 to enable the Department, in these Regulations, to sub-delegate to itself power to make further Regulations. Regulation 31(3) could not, therefore, authorise the Department to make Regulations prescribing the manner in which notices are to be given of the holding of an investigation under Regulation 30. Equally, Regulation 32(1) cannot confer upon the Department the power to prescribe certain other notices or the manner in which they may be served. The drafting of these provisions (as read within the new definition of "prescribed") should not have suggested otherwise.

The final question was

"(3)  Given that this instrument corrects (and in one case clarifies) provisions in an earlier instrument, has the Department (in accordance with paragraph 3.4.11 of Statutory Instrument Practice) made arrangements for copies of this Instrument to be made available free of charge to all known recipients of the early Instrument? If not, explain why not. If so, explain why this Instrument does not bear a head note to that effect (see paragraph 3.4.14 of Statutory Instrument Practice)."

The Department had made arrangements for copies of the Regulations to be made available free of charge. Unfortunately, however, it overlooked the need to include the appropriate headnote.

The Department regrets the errors referred to above. It should, however, draw the attention of the Committee to the fact that these Regulations were, under Section 82(5) of the Equality Act 2006, required to be laid in draft before and approved by resolution of the Northern Ireland Assembly. While Section 1 of and paragraph 7(3) of the Schedule to the Northern Ireland Act 2000 were in effect, the Regulations were, required to be laid before Parliament where they subject to annulment in pursuance of resolution of either House in like manner as a Statutory Instrument.

On 8 May 2007, Section 1 and the Schedule to that Act ceased to have effect and, accordingly, from that date, Regulations made by the Department under Section 82 of the Equality Act 2006 must now be laid before the Assembly. The Department would, therefore, respectfully say that any corrective action necessary as a result of the errors pointed out by the Committee is a matter for the Assembly.