Joint Committee on Statutory Instruments Fourth Report


FOURTH 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 Welsh Office in connection with the Education (Grant-maintained and Grant-maintained Special Schools) (Finance) (Wales) Regulations 1997 (S.I. 1997/599) is printed in Appendix I to this Report.

  3. A memorandum by the Lord Chancellor's Department in connection with the Legal Advice and Assistance (Amendment) Regulations 1997 (S.I. 1997/751) is printed in Appendix II to this Report.

  4. A memorandum by the Ministry of Agriculture, Fisheries and Food in connection with the Dairy Produce Quotas Regulations 1997 (S.I. 1997/733) is printed in Appendix III to this Report.

  5. A memorandum by the Ministry of Agriculture, Fisheries and Food in connection with the Bovine Hides Regulations 1997 (S.I. 1997/813) is printed in Appendix IV to this Report.

  6. A memorandum by Her Majesty's Stationery Office in connection with the Occupational Pension Schemes (Assignment, Forfeiture, Bankruptcy etc.) Regulations 1997 (S.I. 1997/785) is printed in Appendix V to this Report.

  7. A memorandum by the Department of Social Security in connection with the Personal Injuries (Civilians) Amendment Scheme 1997 (S.I. 1997/812) is printed in Appendix VI to this Report.

RENT OFFICERS (HOUSING RENEWAL GRANTS FUNCTIONS) ORDER 1997 (S.I. 1997/778)

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

  Article 2(1) provides that a rent officer shall have 45 days to provide advice in connection with housing renewal grants to a local housing authority, "beginning with the date on which he received the request for advice or, where he requests further information under paragraph (2), with the date on which he received the information". Paragraph (2) provides that the rent officer shall request that information in writing, "and until he receives it paragraph (1) shall not apply to the provision of that advice". This final provision in paragraph (2) appeared to the Committee to duplicate the part of paragraph (1) italicised above. The Department of the Environment accept in a memorandum printed in Appendix VII that the words from "and until" in article 2(2) are unnecessary, and undertake to remove them from article 2(2) when a suitable opportunity for amending the Order arises. The Committee reports article 2(2) for defective drafting, acknowledged by the Department.

COURT FUNDS (AMENDMENT) RULES (NORTHERN IRELAND) 1997 (S.R. 1997/166)

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

  New rule 32A of the Court Funds Rules (Northern Ireland) 1979, inserted by rule 3, establishes deposit and short-term investment accounts to be maintained in the Court Funds Office. Interest is to be paid at the rate of "4%" and "5%" respectively (paragraphs (2) and (3)). The Committee asked the Department whether these percentages are intended to be annual rates. The Northern Ireland Court Service reply in a memorandum printed in Appendix VIII that the rates are annual rates and apologise for their error in not stating this expressly. They state that new rule 32A will be amended at the earliest opportunity to correct this defect. The Committee reports new rule 32A of the 1979 Rules for defective drafting, acknowledged by the Department.

COUNTRYSIDE PREMIUM SCHEME (SCOTLAND) REGULATIONS 1997 (S.I. 1997/330)

  10. The Committee draws the special attention of both Houses to these Regulations on the ground they are of doubtful vires.

  These Regulations are made under section 2(2) of the European Communities Act 1972 and section 98(1) and (2) of the Environment Act 1995, and provide for the payment of grant in respect of activities directed to the maintenance and improvement of the environment. Grant includes payments under both "domestic" legislation and EEC Council Regulation No. 2078/92, for which detailed rules are laid down by EC Commission Regulation No. 746/96.

  Regulation 12(1)(a) of the present Regulations, which applies to grant payable under both EC and domestic arrangements, allows for withholding or recovery of the whole or any part of grant if the applicant, "in making the application, or in furnishing any information in connection with the application for grant or under regulation 9(1) or 10(2), has made a statement which was false or misleading in a material respect". Regulation 12(3)(a) modifies this provision in relation to aid under the Council Regulation by removing the requirement of materiality. It purports to do this in implementation of Article 20(3) of the Commission Regulation.

  Article 20(3), which excludes a farmer from aid if he makes a false declaration, intentionally or as a result of gross negligence, is directly applicable and it thus appeared to the Committee that regulation 12(1)(a) is, at the least, unnecessary. The Committee therefore asked the Scottish Office what authorises regulation 12(1)(a) to the extent that it applies to aid under the Council Regulation. In the second of two memoranda printed in Appendix IX the Department state that although Article 20(3) is directly applicable, the enabling powers used to make the provisions in regulation 12(1) are found in domestic legislation - section 98 of the Environment Act 1995 - as distinct from those in the European Communities Act 1972. Therefore grant which falls within the scope of the Council Regulation (and is therefore covered by the detailed rules in Article 20(3) of the Commission Regulation) is nevertheless grant within the scope of section 98 of the 1995 Act.

  In the opinion of the Committee the fact that regulation 12(1) as a whole is made under "domestic" powers does not affect the principle of direct application. To the extent that regulation 12(1)(a) covers grant under the Council Regulation, it is unauthorised and subversive since Article 20(3) is part of domestic law, as a result of that principle, without further provision. The use of a domestic power to make a rule having no substantive effect, since it duplicates a directly applicable Community provision, is highly questionable. The Committee reports regulation 12(1)(a) for being of doubtful vires.

  The Committee also asked the Department what the combined effect is of regulation 12(1)(a) and the exclusion of the requirement of materiality by regulation 12(3)(a). The Department state that regulation 12(1)(a) refers to statements which are "false or misleading in a material respect". Article 20(3), however, makes no reference to materiality and thus leaves open the possibility that an immaterial false statement (made intentionally or with gross negligence) may trigger exclusion from grant. As Article 20(3) is directly applicable they state that it was necessary to exclude the words "in a material respect" in respect of grant payable under the Council Regulation. But this rests on the assumption that aid is to be outlawed where the false declaration is an immaterial one. However, where a declaration is made with gross negligence (as referred to in Article 20(3)) it must necessarily be to some material fact; and it seems unlikely that an intentional false statement (also as referred to in Article 20(3)) would be held by the courts to trigger exclusion from grant where it was not material to the application. On this basis the provision in regulation 12(3)(a) is unnecessary and probably subversive; but the absence of any provision limiting regulation 12(1)(a) (in cases of aid under the Council Regulation) to statements made intentionally or with gross negligence results in a provision not contemplated by Article 20(3). The Committee therefore again reports these provisions for being of doubtful vires.

ENZOOTIC BOVINE LEUKOSIS ORDER 1997 (S.I. 1997/757)

  11. The Committee draws the special attention of both Houses to this Order on the grounds that it is defectively drafted in two respects.

  Article 1(3) defines "approved laboratory" as one approved by the Minister and listed in Schedule 1. The Committee asked the Ministry of Agriculture, Fisheries and Food to explain how, if the Minister withdraws his approval for a laboratory, those who use it under article 5 for testing their milk will be made aware before Schedule 1 is amended that the laboratory has ceased to be approved. The Department reply in a memorandum printed in Appendix X that article 5(1)(a) requires users to select an approved laboratory and that article 5(1)(b) requires them to notify the Minister of the laboratory selected: "in the event of an approval being removed the Ministry will notify users of the fact". The Committee considers that, although this may be what is done in practice, provision for ensuring it should have been included in the Order itself. There is nothing in the Order as drafted that would prevent a person using a laboratory which has had its approval withdrawn without his being aware of it. The Committee reports the Order for defective drafting in that no such provision is made by it.

  Article 2(1) imposes obligations on a person who has an affected animal "under his control". The Committee asked the Department whether this expression was meant to have a meaning different from the phrase "under his charge" used in other provisions such as article 2(3). The Department reply that the two phrases are intended to mean the same thing: the Committee reports article 2(1) for defective drafting, acknowledged by the Department.

BRUCELLOSIS ORDER 1997 (S.I. 1997/758)

  12. The Committee draws the special attention of both Houses to this Order on the grounds that it is defectively drafted in three places.

  The Committee asked the same question in respect of article 1(2) as they did in respect of article 1(3) of the Enzootic Bovine Leukosis Order 1997, reported on above. The Ministry of Agriculture, Fisheries and Food gave the same reply, reproduced in their memorandum printed in Appendix XI. The Committee reached the same conclusion and reports article 1(2) of this Order for defective drafting.

  Article 1(2) defines "full-time calving" as meaning calving which takes places "271 days or more after service or insemination, or 265 days after implantation or transfer of an embryo". The Committee asked whether the words "or more" should have been included after "265 days" as well as after "271 days". The Department agree that there is such an omission and state that they will amend the Order when the opportunity arises. The Committee reports article 1(2) for defective drafting, acknowledged by the Department.

  Article 5(1) provides that "an appropriate officer may, where he considers it necessary for the purpose of eradicating brucellosis, serve a notice" requiring the movement of animals. By contrast, article 4, in authorising notices to restrict movement, simply provides that an appropriate officer "may serve a notice", without specifying the purpose for which that notice may be served. The Committee asked what circumstances would justify the issue of a notice under article 4. The Department explain in their memorandum that a notice would be served under article 5 if an animal on the premises was under investigation for brucellosis, whereas article 4 is concerned with situations in which the animal under investigation has shown definite indications of brucellosis, as opposed to showing symptoms where brucellosis is one possible cause (which would be enough to permit a notice under article 5). They state that as this would be a matter of clinical judgment for the veterinary surgeon concerned, they thought it better not to spell out in the legislation when such a notice should be served. The Department now accept that article 4 should indicate in some general way when a notice may be served under it and will amend the Order. The Committee considers that, given that the article is currently defective in giving no indication of when a notice may be served, an amendment should be made at the earliest possible opportunity. The Committee reports article 4 for defective drafting, acknowledged by the Department.

NON-DOMESTIC RATES (LEVYING) (SCOTLAND) REGULATIONS 1997 (S.I. 1997/452)

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

  Regulation 24(3) modifies the effect of regulation 23(2) in the circumstances set out in paragraphs (3)(a) and (b) by substituting a reference to "regulation 24(4) below". The Committee asked the Scottish Office whether the reference is correct. The Scottish Office accept, in a memorandum printed in Appendix XII, that the reference should have been to regulation 24(2). The Department state that they do not intend to correct the error, as the Scottish local authorities (who apply the Regulations in levying rates) will not be in any doubt as to what was intended: the provision in question is almost identical in terms to the corresponding regulation 23 of S.I. 1995/548 and S.I. 1996/103. They add that they will bring the drafting error to the attention of all local authorities by means of a circular. The Committee considers that, having accepted that there is a mistake in regulation 24(3) (it refers to a provision that does not exist), the Scottish Office should reconsider their decision not to amend the instrument: correcting (even apparent and transitory) mistakes in legislation ought not to be effected by Ministerial circular. The Committee reports regulation 24(3) for defective drafting, which is acknowledged by the Department.

SOCIAL SECURITY (SOCIAL FUND AND CLAIMS AND PAYMENTS) (MISCELLANEOUS AMENDMENTS) REGULATIONS 1997 (S.I. 1997/792)

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

  These Regulations amend the Social Fund Maternity and Funeral Expenses (General) Regulations 1987. Regulation 5 of the present Regulations inserts a new regulation 7A into the 1987 Regulations, paragraph (2) of which determines the amount of funeral expenses which qualify for grant, including payment to meet the costs of transportation in excess of certain distances. Paragraph (3) provides that all references in regulation 7A(2) (d) and (e) "to a distance of 50 miles shall be construed as applying to the total distance of the journey referred to in those sub-paragraphs". The Committee asked the Department of Social Security to explain the purpose and effect of the provision. The Department explain in a memorandum printed in Appendix XIII that new regulation 7A(3) was intended to clarify that the references to transportation in excess of 50 miles in regulation 7A(2) (d) and (e) are to the whole (ie. both the outward and return) of the journeys referred to in those sub-paragraphs, and give some examples of how the provision is intended to apply. The object is to ensure that the whole of the distance covered by the round trip, so far as it exceeds 50 miles, is to be covered by a payment of grant. The Department concede, however, that new regulation 7A(3) as currently drafted "may not achieve beyond doubt the policy intention" of the Department and undertake to amend the regulation at the earliest opportunity. The Committee reports new regulation 7A(3) 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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