Joint Committee on Statutory Instruments Second Report


APPENDIX VII

Memorandum by the Ministry of Defence

RESERVE FORCES ACT 1996 (TRANSITIONAL, CONSEQUENTIAL AND SAVING PROVISIONS) REGULATIONS 1997 (S.I. 1977/306)

  1. This memorandum is in answer to the letter of 5 March 1997 from the Commons Clerk of the Committee which raises three points.

    (1)   "In section 26 of the 1980 Act substituted by regulation 11, subsection (4) extends to that Act section 63 of the Reserve Forces Act 1996. Since section 63 authorises the delegation of functions under sections 58 and 61 of that Act of 1996, ought not the substituted subsection (4) to refer to sections 58 and 61 (not 58 and 59)?"

  2. Section 58 of the 1996 Act provides the mechanism for service of notices calling out reservists. Section 59 provides for the procedure under which an authorised officer may accept into service reservists who are liable to be called out. Section 61 gives the Secretary of State power to alter the legal authority under which a reservist originally called out under Part IV of VI of the 1996 Act will continue to serve.

  3. Section 63 of the 1996 Act gives the Secretary of State express power to delegate his functions under sections 58 and 61 of the 1996 Act.

  4. One of the effects of the new section 26 of the 1980 Act is to ensure a uniform procedure for calling out all reservists and for accepting them into service, whether they are called out under the 1996 Act or the 1980 Act. It was therefore thought appropriate that the Secretary of State's power in section 63 to delegate his functions under section 58, and an authorised officer's power to accept reservists into service under section 59, should also apply where those reservists are subject to the 1980 Act. The Department therefore submits that the references to sections 58 and 59 in the new section 26(4) of the 1980 Act are correct.

  5. In the Department's view, a reference in section 26(4) of the 1980 Act to section 61 of the 1996 Act would have been incorrect. As mentioned above, section 61 gives the Secretary of State power to alter the legal authority under which a reservist originally called out under Part IV or VI of the 1996 Act will continue to serve. The power to change the authority for calling out reservists in service under the 1980 Act, however, will continue to be exercised under section 28 of the 1980 Act. Thus there is no need to apply section 61 to persons liable to be called out under the 1980 Act.

    (2)   "Regulation 19 inserts a new section 36 into the Reserve Forces Act 1980, and new section 36(3)(b) applies a modified version of section 75(2) of the Reserve Forces Act 1996. Given that this is itself a provision of the 1996 Act, ought not the words "of the Reserve Forces Act 1996" identifying section 73(a) to be omitted?

  6. The Department agrees that the words quoted in question (2) are superfluous, although they do not alter the effect of the provision. They will be deleted at the next convenient opportunity.

    (3)   "As respects new section 83(1) of the 1980 Act substituted by regulation 23, should not the reference in sub-paragraph (a) of that provision be to paragraph 1 (not paragraph 2) of Schedule 7 to the 1996 Act?"

  7. The Department agrees with the committee that this reference to paragraph 2 of Schedule 2 is incorrect and that it should be a reference to paragraph 1. As there is no prospect in the near future of any soldier of the regular forces having his right to discharge or transfer to the Reserve postponed under section 9 of the Army Act 1955 the Department proposes to correct this error at the next convenient opportunity.


 
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Prepared 11 July 1997