Joint Committee on Statutory Instruments Third Report


THIRD REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINIZE STATUTORY INSTRUMENTS*[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 Health in connection with the Medical Devices Fees (Amendment) Regulations 1997 (S.I. 1997/694) is printed in Appendix I to this Report.

  3. A memorandum by the Department of Social Security in connection with the Pensions Compensation Board (Determinations and Review Procedure) Regulations 1997 (S.I. 1997/724) and the Occupational Pensions Regulatory Authority (Determinations and Review Procedure) Regulations 1997 (S.I. 1997/794) is printed in Appendix II to this Report.

COUNCIL TAX (CHARGEABLE DWELLINGS, EXEMPT DWELLINGS AND DISCOUNT DISREGARDS) AMENDMENT ORDER 1997 (S.I. 1997/656)

  4. The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted.

  Article 3 of this Order amends the Council Tax (Exempt Dwellings) Order 1992 by prescribing a new class of dwelling (Class W) for which no council tax is payable. The exemption relates to a dwelling which is the sole or main residence of a dependent relative of a person resident in a dwelling within the same single property as that residence. New article 2(5) (inserted by article 3(5)) provides that for the purposes of Class W a person [A] is to be regarded as the relative of another [B] if (i) he [A] is the spouse of [B], or (ii) he [A] is that person's [B's] parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece or is the parent or child of such a person. It was unclear to the Committee whether the phrase "such a person" refers to (i) B, or (ii) B's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. The Department of the Environment explain in a memorandum printed in Appendix III that the latter meaning is intended: so a person [A] is regarded as the relative of another [B] if A is the parent or child of B's parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece. They state that the provision is defective because it does not cover some relationships which the Department intended should be included (great-uncles and great-aunts), but does cover some relationships which they did not intend to be included (parents and children of non-blood related uncles and aunts). The Department intends to review the provisions and make suitable amendments to achieve its policy in the near future. The Committee notes that the relatives covered by the words "or is the parent or child of such a person" in new article 2(5)(b) overlap to some extent with those listed in the preceding part of that provision. For example, if A is the parent of B's parent, he is B's grandparent, and this is covered by the listed relatives; and if A is the child of B's parent, he or she is B's brother or sister and is similarly covered. The Committee considers that in the course of their review it would be desirable for the Department to eliminate the areas of overlap. The Committee reports new article 2(5) for defective drafting, acknowledged by the Department.

CROWN COURT (CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996) (CONFIDENTIALITY) RULES 1997 (S.I. 1997/699)

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

  Section 18(6) of the Criminal Procedure and Investigations Act 1996 provides that, if the person found guilty of contempt for using or disclosing an object in contravention of section 17 or a person claiming to have an interest in the object applies to be heard, the court must not make an order for forfeiture of the object unless the applicant has been given an opportunity of being heard. Rule 6 provides for the case where the Crown Court proposing to make an order for forfeiture of an object adjourns the proceedings. Under rule 6(2) the appropriate officer of the court is required to notify the contemnor that, if an application in writing is made at least 24 hours before the time set for the adjourned hearing, the court before making a forfeiture order will hear representations made by the contemnor. On the other hand, the notice which the appropriate officer is required to serve (under rule 6(4)) on a person who may claim to have an interest in the object is not required to inform the recipient that the court will hear representations made by him before making an order if he makes a written application to the appropriate officer at least 24 hours before the time set for the adjourned hearing. The Department, in a memorandum printed in Appendix IV, accept that it would have been desirable for the notice under rule 6(4) to contain this information, and state that "consideration will be given to making a suitable amendment in due course". The Committee considers that, given that the Home Office accept that it would be desirable for the additional information to be included in the notice, they should make a firmer commitment that a correcting amendment will be made to the Rules. The Committee reports the provision for defective drafting, which is acknowledged by the Department.

  The Department also accept that the reference in rule 6(2)(a) to paragraph (4) should have read paragraph (5), and undertake to rectify the error at the next available opportunity. The Committee reports rule 6(2)(a) for defective drafting, acknowledged by the Department.

RESERVE FORCES APPEAL TRIBUNALS RULES 1997 (S.I. 1997/798)

  6. The Committee draws the special attention of both Houses to these Rules on the ground that they make an unexpectedly limited use of powers.

  The Rules establish and regulate Reserve Forces Appeal Tribunals. Rule 28(1)(d) provides that the Tribunal may award costs in the circumstances described in rule 6(b): that is, if the appellant (with the leave of the Tribunal) withdraws his appeal after notice of the hearing has been delivered to him. There is no corresponding power to award costs where the Authority withdraws its opposition to the appeal after receiving notice of the hearing date. In a memorandum printed in Appendix VII, the Ministry of Defence accept that there is an anomaly in the treatment under rule 28(1) of the two cases, and state that they will consider amending the Rules when they next review how they are working in practice. The Committee reports rule 28(1) on the ground that it makes an unexpectedly limited use of powers in providing that costs may be awarded against the appellant but making no equivalent provision for costs to be awarded against the authority.

ADOPTION AGENCIES AND CHILDREN (ARRANGEMENTS FOR PLACEMENT AND REVIEWS) (MISCELLANEOUS AMENDMENTS) REGULATIONS 1997 (S.I. 1997/649)

  7. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in two respects and that in another respect they fail to accord with proper legislative practice.

  New regulation 8(2)(h) of the Adoption Agencies Regulations 1983 (inserted by regulation 2(6) of the present Regulations) requires an adoption agency to invite the prospective adopter to send any written observations on the agency's assessment "within 28 days", and new regulation 11A(4)(c) (inserted by regulation 2(10)) requires the agency to invite the prospective adopter to submit any representations he wishes to make "within 28 days". It was not clear to the Committee from when it is intended that the 28 day period should begin to run. The Department of Health explain in a memorandum printed in Appendix VI that the 28 day period is intended to run from the date on which the document was sent to the prospective adopters, and state that they will amend the Regulations at the next available opportunity. The Committee reports new regulations 8(2)(h) and 11A(4)(c) for defective drafting, acknowledged by the Department.

  New regulation 14(4) (inserted by regulation 2(14)) provides that the adoption agency "shall ensure that the place of special security . . . preserve the records etc.", in particular from damage by fire or water. The Committee asked the Department to explain the meaning of this phrase, and to what the "etc." referred to. The Department agree in their memorandum that words such as "is suitable to" should have been inserted before "preserve". They also explain that the "etc." refers to the case records and the indexes referred to in paragraphs (2) and (3) of regulation 14. The Department proposes to make appropriate amendments to new regulation 14(4) at the next available opportunity. The Committee reports the provision as being defectively drafted on both points, acknowledged by the Department.

  New paragraph 12A of Part I of the Schedule (inserted by regulation 2(17)(b)) refers to the result of any assessment carried out in respect of any special educational needs under the Education Act 1996. The Committee asked the Department to identify which provisions of the 1996 Act were contemplated. The Department submit that it is clear from the context that the provision contemplated is section 323. The Committee considers that this will not be readily apparent to the reader, and that the provision in question could easily have been identified in new paragraph 12A. The Committee considers that the failure to do so constitutes defective drafting, and reports accordingly.

MOTOR CARS (DRIVING INSTRUCTION) (AMENDMENT) REGULATIONS 1997 (S.I. 1997/650)

  8. The Committee draws the special attention of both Houses to these Regulations on the ground that there is a want of power.

  Regulation 3 inserts a new regulation 9A into the Motor Cars (Driving Instruction) Regulations 1989. New regulation 9A prescribes, for the purposes of section 129(1)(b) of the Road Traffic Act 1988, "the part of the examination that consists of the instructional ability and fitness test". The recital of powers states that the order making power for this is in section 129(1) of the 1988 Act. It was unclear to the Committee what in section 129(1) of the 1988 Act provided this power. A person wishing to become an approved driving instructor ("ADI") must pass either the examination required by section 125(3)(a) (for able-bodied people) or the examination required by section 125A(6)(a) (for disabled people) of the 1988 Act. Section 129(1) itself refers to the examinations "referred to in section 125(3)(a)" (in paragraph (a)) and "prescribed for the purposes of section 125A(6)" (in paragraph (b)). The Department state that they relied on the implied power in section 129(1)(b) of section 129 to make new regulation 9A. The Committee considers that section 129(1), despite the difference of language between paragraphs (a) and (b), merely identifies the two examinations; it contains no power to prescribe parts of the examinations, this restriction to parts being made by the final words read with each of paragraphs (a) and (b). The Committee accordingly reports the Regulations for a want of power to make regulation 3. It notes that the Department agrees that the difference of language between paragraph (a) and (b) of section 129(1) is insignificant and, since the provision made by regulation 3 is redundant, that they will revoke it at the next convenient opportunity.

RAILWAY SAFETY (MISCELLANEOUS PROVISIONS) REGULATIONS 1997 (S.I. 1997/553)

  9. The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in one respect and that they are defectively drafted in another.

  Regulation 2(5) provides that any reference in the Regulations to the maintenance of any equipment is a reference to (a) the maintenance of that equipment in an efficient state, in efficient working order and in good repair, and (b) where appropriate, subjecting that equipment to a suitable system of maintenance. The Committee asked the Department what sort of activity was covered by (b) but not (a). In a memorandum printed in Appendix VIII the Department of the Environment accept that there is considerable overlap between (a) and (b), but contend that a meaningful distinction can be drawn between the two requirements. They explain that sub-paragraph (a) requires equipment to be in good repair, and that, so long as this condition is met, the duty holder will remain in compliance with (a). Sub-paragraph (b) requires action to be taken in appropriate cases to subject equipment to a suitable system of maintenance, so that a duty holder could be in breach of sub-paragraph (b) even when the relevant equipment remains in good repair. The Committee accepts that it is possible to distinguish the respective fields of operation of paragraph (a) and paragraph (b) and reports regulation 2(5) on the ground that it requires the elucidation provided.

  Regulation 8(1) contains a general saving for "any Community obligation of the United Kingdom". The Committee asked the Department to explain why this saving had been used. The Department reply in their memorandum that the saving was intended to ensure that the power did not permit exemptions to be granted in contravention of the United Kingdom's obligations under European Community legislation. They now accept, however, that such qualification is not necessary as the generality of the words conferring the power must be regarded as implicitly restricted so as to exclude an exercise of the power which is not consistent with the United Kingdom's obligations under the Community legal order. The Department agree not to include such words in future Regulations of this type. The Committee notes this and reports regulation 8(1) 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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