Joint Committee on Statutory Instruments Second Report


SECOND REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINIZE STATUTORY INSTRUMENTS, ETC.*[1]

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 the Environment for Northern Ireland in connection with the Road Transport Licensing (Fees) Regulations (Northern Ireland) 1997 (S.R. 1997/57) is printed in Appendix I to this Report.

  3. A memorandum by the Department of Transport in connection with the Merchant Shipping (Light Dues) Regulations 1997 (S.I. 1997/562) is printed in Appendix II to this Report.


EDUCATION (GRANTS FOR EDUCATION SUPPORT AND TRAINING) (ENGLAND) REGULATIONS 1997 (S.I. 1997/514)

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

  Regulation 5(1) provides that grants to education authorities "in respect of approved expenditure incurred on or after 1st April 1997 shall be payable at the rate of 60 per cent. of such expenditure", subject to the provisions of paragraph (2). Paragraph (2) makes exceptions for certain types of expenditure "incurred by an education authority after 1st April 1997". The Committee asked the Department for Education and Employment whether regulation 5(2) ought to have applied to expenditure incurred on, as well as after, 1st April 1997. The Department agree in a memorandum printed in Appendix III that regulation 5(2) should have applied to expenditure incurred on 1st April 1997, and state that if it proves necessary they will make amending regulations. The Committee reports regulation 5(2) for defective drafting, acknowledged by the Department.


LOCAL GOVERNMENT PENSION SCHEME (AMENDMENT) REGULATIONS 1997 (S.I. 1997/578)

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

  In the instrument laid before both Houses of Parliament, the year "1997" was missing from the date given in the new regulation D7(1)(a) (inserted by regulation 2). The Department of the Environment acknowledge in a memorandum printed in Appendix IV that the year is missing from the date, and say that they will rectify the error with an amending instrument as soon as possible. The Committee reports new regulation D7(1)(a) for defective drafting as acknowledged by the Department, and expects that the new instrument will be issued free of charge to all those who purchased the original instrument.


LOCAL GOVERNMENT PENSION SCHEME (TRANSFERS FROM THE NATIONAL HEALTH SERVICE PENSION SCHEME FOR ENGLAND AND WALES) REGULATIONS 1997 (S.I. 1997/598)

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

  Regulation 2 of the present Regulations inserts into Schedule M2 of the Local Government Pension Scheme Regulations 1995 a new paragraph 10(3)(b), which includes a reference to "the requirement of regulation D2(2)(b)". The Committee asked the Department of the Environment to identify this requirement. The Department accept in a memorandum printed in Appendix V that regulation D2(2)(b) should not be referred to as a "requirement", stating that the intended meaning was rather that the regulation should not apply to any person to whom new paragraph 10(3) applies. They add that new paragraph 10(3)(b) should have referred to the whole of regulation D2(2) and not merely to sub-paragraph (b) of it, and undertake to amend the Regulations at the earliest possible opportunity. The Committee reports new paragraph 10(3)(b) for defective drafting, acknowledged by the Department.


MERCHANT SHIPPING (MINIMUM STANDARDS OF SAFETY COMMUNICATIONS) REGULATIONS 1997 (S.I. 1997/529)

  7. The Committee draws the special attention of both Houses to these Regulations on the grounds that they make an unexpectedly limited use of powers and that the Explanatory Note is incomplete.

  These Regulations are made under section 2(2) of the European Communities Act 1972 and implement the provisions in Council Directive 94/58/EC on the minimum level of training for seafarers. These provisions require means for safe communication among the crew, between the crew and shore-based authorities, and between the crew and passengers, in emergency situations. Regulation 5 therefore imposes a variety of duties on the owners and masters of ships and hovercraft. These duties are intended to secure in part that the vessel has effective means of communication (that is, equipment) and in part that those of the crew who are to help passengers are readily identifiable and have sufficient communication skills, in particular language skills. To monitor compliance with these requirements, regulation 7 confers on inspectors power to inspect the vessel and if necessary to detain it. The Committee was uncertain whether this power of inspection of the vessel is adequate for the purpose of enforcing compliance with all of the requirements of regulation 5, in particular those requirements relating to the communications skills of the crew. The Department of Transport accept in a memorandum printed in Appendix VI that mere inspection of the vessel will not ensure compliance with all of the requirements of regulation 5, and state that powers to inspect documents and working arrangements and to question the crew may also be needed. They add that comprehensive arrangements already exist for ship inspections, and suggest that, in practice, these existing arrangements will ensure compliance with all of the requirements of regulation 5. It is the view of the Committee that this argument is not convincing, as inspection under other statutory powers can, as a matter of law, only be used to secure the enforcement of the statutory requirements for the purpose of enforcing which they are conferred. Hence, since regulation 7 is limited to inspection of the vessel (and its equipment), there are no legal powers available to secure compliance with the other requirements of regulation 5. The Committee therefore reports the Regulations on the ground that they constitute an unexpectedly narrow exercise of the power.

  Regulation 2(1) refers to two publications by the International Maritime Organisation: the "Code for the Construction and Equipment of Ships carrying Dangerous Chemicals in Bulk" and the "Code for the Construction and Equipment of Ships carrying Liquefied Gases in Bulk". The Explanatory Note to the Regulations does not indicate where copies of these publications may be obtained, as it is required to do by paragraph 2.48 of Statutory Instruments Practice. The Department state in their memorandum that they regret this error and give the relevant address. The Committee reports the Regulations on the ground that the Explanatory Note is incomplete, acknowledged by the Department.


RESERVE FORCES ACT 1996 (TRANSITIONAL, CONSEQUENTIAL AND SAVING PROVISIONS) REGULATIONS 1997 (S.I. 1997/306)

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

  Regulation 19 of the present Regulations substitutes a new section 36 into the Reserve Forces Act 1980. New section 36(3) makes section 75 of the Reserve Forces Act 1996 apply to reservists liable to recall under certain sections of the 1980 Act with a substituted subsection (2). The Committee asked in relation to subsection (2) whether the words "of the Reserve Forces Act 1996" (identifying section 73(a)) were superfluous, given that the subsection was itself a provision of the 1996 Act. In a memorandum printed in Appendix VII the Ministry of Defence agree that the words are superfluous, and undertake to delete them at the next convenient opportunity. The Committee reports new section 36(3)(b) for defective drafting, acknowledged by the Department.

  Regulation 23 inserts a new section 83(1) into the 1980 Act. The Committee asked whether the reference in sub-paragraph (a) of that provision to paragraph 2 of Schedule 7 to the 1996 Act should actually be to paragraph 1. The Department state in their memorandum that the reference should be to paragraph 1 and that they will correct the error at the next convenient opportunity. The Committee reports new section 83(1)(a) for defective drafting, acknowledged by the Department.


1   * The Orders of Reference of the Committee are set out in the First Report, Session 1997-98 (HL Paper 4; HC 33-i). Back




 
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