Joint Committee on Statutory Instruments First Report


FIRST REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINIZE STATUTORY INSTRUMENTS, ETC.

ORDERED TO REPORT:

  1. The Committee has considered the instruments set out in the Annex to this Report and has determined that the special attention of both Houses does not require to be drawn to any of them.

  2. A memorandum by the Department of Transport in connection with the Economic Regulation of Airports (Expenses of the Monopolies and Mergers Commission) Regulations 1997 (S.I. 1997/403) is printed in Appendix I to this Report.

  3. A memorandum by the Department of Health in connection with the National Health Service (Existing Liabilities Scheme) (Amendment) Regulations 1997 (S.I. 1997/526) and the National Health Service (Clinical Negligence Scheme) (Amendment) Regulations 1997 (S.I. 1997/527) is printed in Appendix II to this Report.

DOCKYARD SERVICES (ROSYTH) (DESIGNATION AND APPOINTED DAY) (REVOCATION) ORDER 1997 (S.I. 1997/151)

  4. The Committee draws the special attention of both Houses to this Order on the ground that there was unjustifiable delay in notifying the Lord Chancellor and the Speaker of the House of Commons that the instrument came into operation before it was laid before Parliament.

  The Order was laid before Parliament on 24th February 1997 and came into force on that day. Section 4 of the Interpretation Act 1978 (as applied to subordinate legislation) provides that an instrument comes into force at the beginning of the day on which it is stated to come into force. Accordingly the Order came into force immediately after midnight at the start of 24th February 1997, and therefore came into force before it was laid before Parliament. Under the proviso to section 4(1) of the Statutory Instruments Act 1946 the Lord Chancellor and the Speaker of the House of Commons are required to be notified forthwith in such a case. No notification was given until the omission was pointed out to the Department. In their second memorandum printed in Appendix III, the Ministry of Defence "deeply regret" this omission, and state that the notifications were sent on 17th March 1997. The Committee therefore reports to both Houses that there was unjustifiable delay in notifying the Lord Chancellor and the Speaker of the House of Commons that this instrument came into force before it was laid before Parliament.


ROAD VEHICLES (REGISTRATION AND LICENSING) (AMENDMENT) REGULATIONS 1997 (S.I. 1997/401)

  5. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in two respects.

  New regulation 12A (inserted by regulation 6) makes provision in paragraph (5) for cases in which a motor vehicle trader transfers a vehicle to another person. Paragraph (5)(a) provides that the motor vehicle trader shall, "where the transfer is to another motor vehicle trader, before the expiration of the period of three months beginning on the day after the date on which the vehicle was last owned by a person who was not a motor vehicle trader, give to the new keeper" certain parts of the registration document. It was not clear whether paragraph (5)(a) applies only in cases where the transfer is to another motor vehicle trader within the three month period specified, or whether the transferor must give the documents to the new keeper within this three month period. This latter sense is implied by the placing of the comma after the phrase "where the transfer is to another motor vehicle trader". The Department of Transport state in a memorandum printed in Appendix IV that the intended sense is that paragraph (5)(a) should only apply in the former case: that is, where the transfer is to another motor vehicle trader and that transfer takes place within the three month period. The Committee considers that the provision is defectively drafted because it does not unambiguously achieve the intention of the Department.

  Paragraph (5)(b) requires the transferor "in any other case" to send certain information to the Secretary of State on that part of the registration document relating to the change of keeper. The Department state that this sub-paragraph is intended to apply where a trader transfers a vehicle to another trader outside the three months' period or to another person at any time. They concede that this provision overlaps with new regulation 12A(2), which covers cases of a transfer to a person who is not a trader. They submit that the requirements set out in paragraph (5)(b)(i) to (iv) merely replicate the requirements set out in paragraph (2)(a)(i) to (iv), so there is no conflict between the two provisions. In the Committee's view, the inclusion of overlapping provisions is inconsistent with proper legislative practice. Furthermore, in the case of a transfer to a person who is not a trader, paragraph (2)(b) requires the registered keeper to give to the new keeper that part of the registration document which relates to the new keeper, and paragraph (2)(c) provides that the registered keeper may give to the new keeper any current licence issued in respect of the vehicle on which vehicle excise duty has been paid. There are no corresponding provisions in paragraph (5). Therefore, in relation to the case of a transfer from a trader to a non-trader, it is not clear whether the requirement in paragraph (2)(b) must be observed. The Committee reports new regulation 12A(5) for defective drafting.


OCCUPATIONAL AND PERSONAL PENSION SCHEMES (CONTRACTING-OUT ETC: REVIEW OF DETERMINATIONS) REGULATIONS 1997 (S.I. 1997/358)

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

  These Regulations provide for the procedure to be followed in relation to a review of a determination concerning the issue, cancellation or variation of certain certificates under the Pension Schemes Act 1993. Regulation 3(4) requires the Secretary of State (if he decides to review a determination) to notify certain persons that they may request a formal hearing and may make representations within 21 days of receipt of the notice. Regulation 4(2) provides that, if the Secretary of State refuses to grant such a request, he is not to proceed to make his review until he has allowed the person making the request for a formal hearing at least 21 days to make any written submissions in connection with the review. Regulation 5(1) provides that the Secretary of State shall allow a period of at least 21 days (or, with the agreement of certain persons, a lesser period) to elapse after the sending of notices required by regulation 3(4) and is then to proceed to review the determination as soon as practicable. It was unclear whether the minimum period of 21 days for making written submissions (mentioned in regulation 4(2)) is a further period which is separate from the minimum period for making representations (mentioned in regulation 3(4)). The Department of Transport state in a memorandum printed in Appendix V that the minimum period of 21 days mentioned in regulation 4(2) was not intended to be a further period separate from the period mentioned in regulation 3(4). They accept that, for the sake of consistency, regulation 4(2) should have referred to "representations" instead of "submissions". The Committee considers that the words "but he shall not proceed to make his review of the determination until he has allowed the person making the request [for a formal hearing] at least 21 days to make any written submissions in connection with the review" in regulation 4(2) are misleading and unnecessary. They are misleading in that they suggest (contrary to what is intended) that the period is a further minimum period to that referred to in regulation 3(4), especially since regulation 3(4) refers to the minimum period for making representations (which may be oral or written), whereas regulation 4(2) refers to the minimum period for making written submissions. The words are unnecessary in view of regulation 5(1). The Committee reports regulation 4(2) for defective drafting.


 
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Prepared 11 July 1997