Part 3 National Underground Asset Register

58 National Underground Asset Register: Northern Ireland
(1) The Street Works (Northern Ireland) Order 1995 (S.I. 1995/3210 (N.I. 19)) is amended in accordance with subsections (2) to (4).
(2) In Article 2 (interpretation), in paragraph (2)—
(a) after the definition of “in” insert—

““NUAR provision” means any of Articles 45A to 45I and Schedule 2ZA;”;

(b) in the definition of “prescribed”—
(i) for “means” substitute “means—”;
(ii) the words from “prescribed by” to the end become paragraph (a);
(iii) at the beginning of that paragraph insert “except in Articles 39 and 40 and a NUAR provision,”;
(iv) after that paragraph insert—

“(a) in Article 40 and a NUAR provision, prescribed by regulations made by the Secretary of State;”.

(3) After Article 45
insert—

“National Underground Asset Register

National Underground Asset Register
45A (1) The Secretary of State must keep a register of information relating to apparatus in streets in Northern Ireland.
(2) The register is to be known as the National Underground Asset Register (and is referred to in this Order as “NUAR”).
(3) NUAR must be kept in such form and manner as may be prescribed.
(4) The Secretary of State must make arrangements so as to enable any person who is required, by a provision of this Order, to enter information into NUAR to have access to NUAR for that purpose.
(5) The obligations of the Secretary of State under paragraph (1) and under section 106A(1) of the New Roads and Street Works Act 1991 (keeping of register of information relating to apparatus in streets in England and Wales) may be discharged by the keeping of a single register in relation to England, Wales and Northern Ireland.

Initial upload of information into NUAR
45B (1) Before the end of the initial upload period an undertaker having apparatus in a street must enter into NUAR—
(a) all information that is included in the undertaker’s records under Article 39(1) on the archive upload date, and
(b) any other information of a prescribed description that is held by the undertaker on that date.
(2) The duty under paragraph (1) does not apply in such cases as may be prescribed.
(3) Information must be entered into NUAR under paragraph (1) in such form and manner as may be prescribed.
(4) An undertaker who fails to comply with a duty placed on the undertaker under this Article—
(a) commits an offence, and
(b) is liable to compensate any person in respect of damage or loss incurred by the person in consequence of the failure.
(5) A person who commits an offence under paragraph (4)(a) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(6) In criminal or civil proceedings against an undertaker arising out of a failure to comply with a duty under this Article, it is a defence for the undertaker to show that all reasonable care was taken to secure that no such failure occurred by—
(a) the undertaker and the undertaker’s employees, and
(b) any contractor of the undertaker and the contractor’s employees.
(7) For the purposes of paragraph (1) the Secretary of State must by regulations—
(a) specify a date as “the archive upload date”, and
(b) specify a period beginning with that date as the “initial upload period”.

Access to information kept in NUAR
45C (1) The Secretary of State may by regulations make provision for or in connection with making information kept in NUAR available.
(2) The regulations may (among other things)—
(a) make provision about which information, or descriptions of information, may be made available;
(b) make provision about the descriptions of person to whom information may be made available;
(c) make provision for information to be made available subject to exceptions;
(d) make provision requiring or authorising the Secretary of State to adapt, modify or obscure information before making it available;
(e) make provision authorising all information kept in NUAR to be made available to prescribed descriptions of person under prescribed conditions;
(f) make provision about the purposes for which information may be made available;
(g) make provision about the form and manner in which information may be made available;
(h) make provision for or in connection with the granting of licences by the Secretary of State in relation to any non-Crown IP rights that may exist in relation to information made available (including provision about the form of a licence and the terms and conditions of a licence);
(i) make provision for information to be made available for free or for a fee;
(j) make provision about the amounts of the fees, including provision for the amount of a fee to be an amount which is intended to exceed the cost of the things in respect of which the fee is charged;
(k) make provision about how funds raised by means of fees must or may be used, including provision for funds to be paid to persons who are required, by a provision of this Order, to enter information into NUAR.
(3) Except as otherwise prescribed and subject to Article 45I, processing of information by the Secretary of State in exercise of functions conferred by or under Article 45A or this Article does not breach—
(a) an obligation of confidence owed by the Secretary of State, or
(b) any other restriction on the processing of information (however imposed).
(4) In this Article—
“database right” has the same meaning as in Part 3 of the Copyright and Rights in Databases Regulations 1997 (S.I. 1997/3032);
“non-Crown IP right” means any copyright, database right or other intellectual property right which is not owned by the Crown;
“processing” has the same meaning as in the Data Protection Act 2018 (see section 3(4) of that Act).

Guidance
45D (1) The Secretary of State must produce guidance for persons described in paragraph (2) about how to protect information kept in, or obtained from, NUAR.
(2) The persons are persons who, pursuant to regulations made under Article 45C, are able to access information kept in NUAR.
(3) The Secretary of State may revise or replace the guidance.
(4) The Secretary of State must publish the guidance (and any revised or replacement guidance) in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons described in paragraph (2).
(5) The same guidance may discharge the obligations of the Secretary of State under this Article and under section 106D of the New Roads and Street Works Act 1991.

Fees payable by undertakers in relation to NUAR
45E (1) The Secretary of State may by regulations make provision requiring undertakers having apparatus in a street to pay fees to the Secretary of State for or in connection with the exercise by the Secretary of State of any function conferred by or under a NUAR provision.
(2) The regulations may—
(a) specify the amounts of the fees, or the maximum amounts of the fees, or
(b) provide for the amounts of the fees, or the maximum amounts of the fees, to be determined in accordance with the regulations.
(3) In making the regulations the Secretary of State must seek to secure that, so far as possible and taking one year with another, combined NUAR income matches combined NUAR expenses.
(4) Except where the regulations specify the amounts of the fees—
(a) the amounts of the fees must be specified by the Secretary of State in a statement, and
(b) the Secretary of State must—
(i) publish the statement, and
(ii) lay it before Parliament.
(5) Regulations under paragraph (1) may make provision about—
(a) when a fee is to be paid;
(b) the manner in which a fee is to be paid;
(c) the payment of discounted fees;
(d) exceptions to requirements to pay fees;
(e) the refund of all or part of a fee which has been paid.
(6) Before making regulations under paragraph (1), the Secretary of State must consult—
(a) such representatives of persons likely to be affected by the regulations as the Secretary of State considers appropriate, and
(b) such other persons as the Secretary of State considers appropriate.
(7) In this Article—
“combined NUAR expenses” means the sum of—
(a) expenses incurred by the Secretary of State in, or in connection with, exercising functions conferred by or under a NUAR provision (including expenses not directly connected with the keeping of NUAR), and
(b) expenses incurred by the Secretary of State in, or in connection with, exercising functions conferred by or under Part 3A of the New Roads and Street Works Act 1991 (including expenses not directly connected with the keeping of the register kept under section 106A(1) of that Act);
“combined NUAR income” means the sum of—
(a) income received by the Secretary of State from fees payable under regulations under paragraph (1), and
(b) income received by the Secretary of State from fees payable under regulations under section 106E(1) of the New Roads and Street Works Act 1991.

Providing information for purposes of regulations under Article 45E
45F (1) The Secretary of State may by regulations make provision requiring undertakers having apparatus in a street to provide information to the Secretary of State for either or both of the following purposes—
(a) assisting the Secretary of State in determining the provision that it is appropriate for regulations under Article 45E(1) or a statement under Article 45E(4) to make;
(b) assisting the Secretary of State in determining whether it is appropriate to make changes to such provision.
(2) The Secretary of State may by regulations make provision requiring undertakers having apparatus in a street to provide information to the Secretary of State for either or both of the following purposes—
(a) ascertaining whether a fee is payable by a person under regulations under Article 45E(1);
(b) working out the amount of a fee payable by a person.
(3) Regulations under paragraph (1) or (2) may require an undertaker to notify the Secretary of State of any changes to information previously provided under the regulations.
(4) Regulations under paragraph (1) or (2) may make provision about—
(a) when information is to be provided (which may be at prescribed intervals);
(b) the form and manner in which information is to be provided;
(c) exceptions to requirements to provide information.

Monetary penalties
45G Schedule 2ZA makes provision about the imposition of penalties in connection with requirements imposed by regulations under Articles 45E(1) and 45F(1) and (2).

Arrangements for third party to exercise functions
45H (1) The Secretary of State may make arrangements for a prescribed person to exercise a relevant function of the Secretary of State.
(2) More than one person may be prescribed.
(3) Arrangements under this Article may—
(a) provide for the Secretary of State to make payments to the person, and
(b) make provision as to the circumstances in which such payments are to be repaid to the Secretary of State.
(4) In the case of the exercise of a function by a person authorised by arrangements under this Article to exercise that function, a reference in a NUAR provision or in regulations under a NUAR provision to the Secretary of State in connection with that function is to be read as a reference to that person.
(5) Arrangements under this Article do not prevent the Secretary of State from exercising a function to which the arrangements relate.
(6) Except as otherwise prescribed and subject to Article 45I, the disclosure of information between the Secretary of State and a person in connection with the person’s entering into arrangements under this Article or exercise of functions to which such arrangements relate does not breach—
(a) an obligation of confidence owed by the person making the disclosure, or
(b) any other restriction on the disclosure of information (however imposed).
(7) In this Article “relevant function” means a function of the Secretary of State conferred by or under a NUAR provision (including the function of charging or recovering fees under regulations under Article 45E) other than—
(a) a power to make regulations, or
(b) a function under Article 45E(4) (specifying of fees etc).
(8) If a person exercises the function of charging or recovering fees by virtue of arrangements under this Article, the person must pay the fees to the Secretary of State, except to the extent that the Secretary of State directs otherwise.

Data protection
45I (1) A duty or power to process information that is imposed or conferred by or under a NUAR provision does not operate to require or authorise the processing of personal data that would contravene the data protection legislation (but in determining whether processing of personal data would do so, that duty or power is to be taken into account).
(2) In this Article—
“the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3(9) of that Act);
“personal data” has the same meaning as in that Act (see section 3(2) of that Act);
“processing” has the same meaning as in that Act (see section 3(4) of that Act).”

(4) In Article 59 (regulations)—
(a) before paragraph (1) insert—

“A1 Before making regulations under this Order the Secretary of State must obtain the consent of the Department for Infrastructure.
A2 Regulations under Article 39 or 40 or under a NUAR provision may make supplementary or incidental provision.”;

(b) in paragraph (1), after “Order” insert “, other than regulations made by the Secretary of State,”;
(c) before paragraph (2) insert—

“(1B) For the purposes of the Statutory Instruments Act 1946 a power of the Secretary of State to make regulations under this Order is exercisable by statutory instrument, and that Act applies in relation to a document by which such a power is exercised as if this Order were an Act of Parliament passed after the commencement of that Act.
(1C) Regulations made by the Secretary of State under Articles 39, 40, 45A, 45B and 45F are subject to the negative Westminster procedure.
(1D) Subject to paragraphs (1E) and (1F), regulations made by the Secretary of State under Articles 45C, 45E and 45H and paragraph 1 of Schedule 2ZA are subject to the affirmative Westminster procedure.
(1E) Regulations under Article 45E(1) that only make provision of a kind mentioned in Article 45E(2) are subject to the negative Westminster procedure.
(1F) But the first regulations under Article 45E(1) that make provision of a kind mentioned in Article 45E(2) are subject to the affirmative Westminster procedure.
(1G) Where regulations under this Order are subject to “the affirmative Westminster procedure” the regulations may not be made unless a draft of the statutory instrument containing them has been laid before and approved by a resolution of each House of Parliament.
(1H) Where regulations under this Order are subject to “the negative Westminster procedure” the statutory instrument containing the regulations is subject to annulment in pursuance of a resolution of either House of Parliament.
(1I) Any provision that may be made in regulations under this Order subject to the negative Westminster procedure may be made in regulations subject to the affirmative Westminster procedure.”

(5) Article 59(A2) of the Street Works (Northern Ireland) Order 1995 (S.I. 1995/3210 (N.I. 19)) (inserted by subsection (4)(a)) is revoked on the coming into operation of Article 59(1A) of that Order (as inserted by Article 28(3) of the Street Works (Amendment) (Northern Ireland) Order 2007 (S.I. 2007/287 (N.I. 1))).
(6) Schedule 2 to this Act inserts Schedule 2ZA into the Street Works (Northern Ireland) Order 1995 (S.I. 1995/3210 (N.I. 19)) (monetary penalties).

S. 58 in force at Royal Assent for specified purposes, see s. 142(1)(2)(h)