Joint Committee on Statutory Instruments Fifth Report


FIFTH REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE 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 Scottish Office Pensions Agency in connection with the Teachers' Superannuation (Scotland) Amendment Regulations 1997 (S.I. 1997/676) is printed in Appendix I to this Report.

  3. A memorandum by the Ministry of Agriculture, Fisheries and Food in connection with the Plant Protection Products (Fees) (Amendment) Regulations 1997 (S.I. 1997/884) is printed in Appendix II to this Report.

  4. A memorandum by the Department of Social Security in connection with the Workmen's Compensation (Supplementation) (Amendment) (No. 2) Scheme 1997 (S.I. 1997/823) and the Pneumoconiosis, Byssinosis and Miscellaneous Diseases Benefit (Amendment) Scheme 1997 (S.I. 1997/824) is printed in Appendix III to this Report.

GOOD LABORATORY PRACTICE REGULATIONS 1997 (S.I. 1997/654)

  5. The Committee draws the special attention of both Houses to these Regulations on the grounds that they do not accord with proper legislative practice and are defectively drafted.

  Regulation 2(1) defines "sponsor" as a "person or entity who commissions or pays for a safety study". The Committee asked the Department of Health to explain the inclusion of the italicised words, in view of the definition of "person" in the Interpretation Act 1978. The Department of Health explain in a memorandum printed in Appendix IV that a sponsor might be an entity which is an "undertaking" for the purposes of European Community law (such as some form of joint venture) but not be a legal person for the purposes of United Kingdom domestic law. However, Schedule 1 to the Interpretation Act defines "person" as including a body of persons both corporate or unincorporate. In view of this and the fact that "person" includes both individuals and more than one person, there is no such entity which would not be covered. The Committee considers that the reference to "entity" in the definition of "sponsor" in regulation 2(1) is therefore unnecessary and contrary to proper legislative practice in not relying on, and making full use of, the Interpretation Act, and reports accordingly.

  Regulation 6(1) provides that the operator of a laboratory is to be regarded as being a member of the United Kingdom good laboratory practice compliance programme in respect of particular premises if - "(a) he is regarded by the Secretary of State as being a member of the programme in respect of those premises immediately before these Regulations came into force; or (b) after having inspected the premises, the Secretary of State has informed the operator in writing that he is admitting the operator to membership of the programme in respect of those premises". It was not clear to the Committee what "regarded" in regulation 6(1)(a) meant and, in particular, how the operator would know that he is so regarded. The Department explain that, before the Regulations came into force, membership of the programme was voluntary, and that the operator, as a member, would have received from the monitoring authority a written statement known as a compliance statement. All holders of a valid compliance statement immediately before the Regulations came into force are "regarded" by the Secretary of State as being members of the programme. The Department accept that it is not clear "on the face of the Regulations" that possession of a valid compliance statement was the criterion for existing membership. The Committee reports regulation 6(1)(a) for defective drafting, acknowledged by the Department.

  The Regulations create offences of conducting safety studies at non-membership laboratories and failing, at a laboratory, to comply with a "warning notice" from the Secretary of State warning the operator that he has deviated from good practice and requiring him to remedy his defaults. The Secretary of State is charged (in regulation 3(b)) with the duty "to enforce compliance with the Regulations". Under regulation 9(1) the Secretary of State may delegate his enforcement function to inspectors and regulation 10 empowers him to appoint inspectors and requires every appointment to be made in writing and to specify the functions delegated to the individual inspector. Regulation 9(2) confers on a duly appointed inspector powers to enter premises, make tests, take samples, require the production (and take possession) of documents and question persons there. The Committee asked the Department three specific questions on the provisions in regulations 9 and 10.

  The powers in regulation 9(2) are introduced by the words "in enforcing compliance with these Regulations". The power of entry in sub-paragraph (a) is also limited by the words "for the purposes of enforcing compliance with the Regulations". It was not clear to the Committee what the former phrase adds to the latter. The Department state that the words in sub-paragraph (a) are intended to make it clearer that the entry must be linked to enforcing compliance. In the Committee's view, it is both unnecessary and misleading to have included both sets of words which substantially duplicate each other. The Committee also notes that the words "in enforcing compliance" are inapt in the context of the inspector exercising his powers before enforcement (by warning notice or prosecution) arises; the powers are conferred for the purpose of enforcement. Accordingly, the words "for the purposes of enforcing these Regulations" in sub-paragraph (a) should have been substituted for the opening words of sub-paragraph (2), thus making it unnecessary to have any other words limiting the exercise of the powers. The Committee reports regulation 9(2) on the ground that it is defectively drafted.

  The powers conferred on inspectors by regulation 9(2)(d), (e) and (f) to require the production of documents, to take possession of documents and to question people are limited by requiring the documents and the information sought to be "relevant in relation to the proper exercise by the inspector of his powers". It was not clear to the Committee why this phrase had been used instead of the phrase (used in regulation 3(b)) "to enforce compliance with the Regulations". The Department explain that the phrase used in paragraphs (d), (e) and (f) is intended to limit the inspectors' powers further than would be achieved by limiting them to "enforcing compliance with the Regulations". The Department state that they intended to limit the power to evidence that is (legally) relevant. The Committee considers that a power to "enforce compliance with the Regulations" can only apply to evidence which is "relevant": the phrase used in paragraphs (d), (e) and (f) does nothing to limit further the powers of inspectors. The Committee therefore reports regulation 9(2) (d), (e) and (f) for defective drafting.

  Finally, the Committee asked the Department, given that the functions of enforcement delegated to an individual inspector may be limited by the terms of his appointment under regulation 10, what in regulation 9 acknowledges any limitations on his particular functions. The Department reply that the individual inspector's limited functions are implied in regulation 9 by the words "duly appointed in accordance with regulation 10". The Committee considers that these words do not indicate the possible limits of the inspector's functions, as distinct from whether he has a written appointment from the Secretary of State which specifies those limits. Furthermore, this expression does not covey the idea that the individual inspector does not necessarily possess the listed powers for the purpose of enforcing all aspects of the Regulations. The Committee reports regulation 9 for defective drafting in this respect also.

COMMON POLICE SERVICE (SCOTLAND) ORDER 1997 (S.I. 1997/695)

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

  Article 4(1) purports to revoke the Common Police Services Order 1995 which was revoked by the Common Police Services Order 1996. In a memorandum printed in Appendix V the Scottish Office Home Department accept that Article 4(1) should have referred to the Common Police Services Order 1996. The Committee reports the article for defective drafting, acknowledged by the Department.

TOWN AND COUNTRY PLANNING APPEALS (DETERMINATION BY APPOINTED PERSON) (INQUIRIES PROCEDURE) (SCOTLAND) RULES 1997 (S.I. 1997/750)

TOWN AND COUNTRY PLANNING (INQUIRIES PROCEDURE) (SCOTLAND) RULES 1997 (S.I. 1997/796)

  7. The Committee draws the special attention of both Houses to these Rules on the grounds that they are defectively drafted in four respects.

  Rule 2(3) of S.I. 1997/750 provides that in certain specified cases rule 4(1) is not to apply and that the references in the Rules to statutory parties are to be omitted. The Committee asked the Scottish Office whether rules 7(4) and 12(3) should also have been disapplied, given that they are not meaningful with the omission of the reference to statutory parties. The Committee asked the same question in respect of rule 2(3) of S.I. 1997/796 in relation to rules 7(4) and 13(3). The Scottish Office accept in a memorandum printed in Appendix VI that rules 7(4) and 12(3) of S.I. 1997/750 (and rules 7(4) and 13(3) of S.I. 1997/796) are not meaningful with the omission of the references to statutory parties and that it might have been more helpful to the reader specifically to disapply them. The Committee reports rule 2(3) of S.I. 1997/750 and rule 2(3) of S.I. 1997/796 for defecting drafting.

  Rule 7(4) of each instrument requires the planning authority to give notice to all statutory parties stating the time and place at which the authority's statement of case may be inspected. It was not clear to the Committee whether this rule was intended to apply to an amended or additional statement of case sent to the Secretary of State under rule 10. The Department reply that this was the policy intention, and accept that rule 7(4) should also have referred to amended or additional statements. The Committee reports rule 7(4) of both instruments for defective drafting, acknowledged by the Department.

  Rule 12(2) of S.I. 1997/750 and rule 13(2) of S.I. 1997/796 require the planning authority to afford to any person who so requests a reasonable opportunity to inspect and, where practicable, take copies of any statement of case or other document which has been served on them in accordance with certain provisions, including rule 7. The Committee asked the Department to explain the relevance of the reference to rule 7, given that that rule relates to service by the authority of their statement of case rather then service of a statement or other document on the authority. The Department state that the references to rule 7 are drafting errors and should not have been included. The Committee reports rule 12(2) of S.I. 1997/750 and rule 13(2) of S.I. 1997/796 for defective drafting, acknowledged by the Department.

  Rule 18 of S.I. 1997/750 provides that the appointed person may in place of the Secretary of State take such steps as the Secretary of State is required or enabled to take by virtue of certain provisions, including rule 16. The Committee asked the Department whether it was intended that rule 18 should apply to the step under rule 16(2) requiring the Secretary of State to make available a representative of his department to attend the inquiry or transmit the application to another government department. The Department reply that the reference in rule 18 to rule 16 is a drafting error. The Committee reports rule 18 of S.I. 1997/750 for defective drafting, acknowledged by the Department.

  The Scottish Office state in their memorandum that they will make amending Rules to deal with these points in early course.

REPORTERS (APPEALS AGAINST DISMISSAL) (SCOTLAND) REGULATIONS 1997 (S.I. 1997/729)

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

  The Regulations provide that certain officers of a senior rank in the Scottish Children's Reporter Administration have a right of appeal to the Secretary of State against dismissal by the Administration from office. Regulation 6 requires the appellant to give to the Administration a copy of the notice of appeal and any documentary evidence which he has submitted to the Secretary of State. However, he is not required to send the Administration a copy of the statement setting out his grounds of appeal. In a memorandum printed in Appendix VII the Scottish Office accept that regulation 6 should include a requirement for the appellant to give to the Administration a copy of the statement of grounds of appeal, and state that they will amend the Regulations at the first opportunity. The Committee reports regulation 6 for defective drafting, acknowledged by the Department.

  Regulation 12(1) states that the provisions of regulation 12(2) and (3) "require the Secretary of State to make a decision on whether to allow the appeal". The Committee asked the Department to explain how paragraphs (2) and (3) require the Secretary of State to make such a decision. The Department accept that, as presently drafted, paragraphs (2) and (3) do not require the Secretary of State to make a decision on whether to allow an appeal. The Committee also asked the Department to explain the reference in regulation 12(2) and (3) to "the steps specified" in regulation 10(1). The Department accept in their memorandum that the reference is mistaken and that paragraphs (2) and (3) should have referred to paragraph (1) of regulation 12. The Department undertake to correct these errors at the next available opportunity. The Committee reports regulation 12 for defective drafting, acknowledged by the Department.

COMMUNITY CARE (DIRECT PAYMENTS) (SCOTLAND) REGULATIONS 1997 (S.I. 1997/693)

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

  Regulation 3 specifies, for the purposes of section 12B(3) of the Social Work (Scotland) Act 1968, certain categories of person including in paragraph (b) "a person who lives with the payee as man and wife". It appeared to the Committee that, since the person who lives with the payee cannot live with the payee as man and wife, the intention could have been better expressed by a provision to the following effect: "where two persons live together as man and wife and one is the payee, the other person". The Scottish Office accept in a memorandum printed in Appendix VIII that this formulation might better express the intention, and propose to amend regulation 3(b) at the next convenient opportunity if the Committee so prefers. In the Committee's view, this course should be adopted in the interests of clarity. The Committee reports regulation 3(b) on the ground that it is defectively drafted.

RURAL DIVERSIFICATION PROGRAMME (SCOTLAND) AMENDMENT REGULATIONS 1977 (S.I. 1997/722)

  10. The Committee draws the special attention of both Houses to these Regulations on the ground that their Explanatory Note is misleading.

  The Explanatory Note states that the effect of the amendment made by regulation 2 is that where the diversification measure undertaken is aquaculture, the amount of financial assistance payable under the principal Regulations (S.I. 1995/3295) shall not exceed 40% of the eligible expenditure. The Committee asked the Scottish Office whether the italicised words are incorrect, given that the amount of financial assistance payable is 40% of the eligible expenditure, subject to the ceiling imposed by regulation 7(2)(b) of the principal Regulations. In a memorandum printed in Appendix IX the Department contend that the underlined words are not incorrect but accept that the formula "is 40% . . . subject to the ceiling imposed by regulation 7(2)(b) of the principal Regulations" would be more useful for the reader. The Committee reports the Regulations on the ground that their Explanatory Note is misleading.

SHEEP SCAB ORDER 1997 (S.I. 1997/968)

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

  Article 6(1) provides that no person shall move any sheep visibly affected with sheep scab, or any flock containing one or more sheep visible affected with sheep scab, on to or off any premises except in certain circumstances, including (a) treatment or (b) immediate slaughter. Article 7(1) requires any person who is the keeper of sheep visibly affected with sheep scab to treat those sheep as soon as is reasonably practicable with an authorised product. The Committee asked the Ministry of Agriculture, Fisheries and Food whether Article 7(1) is intended to apply in a case where a person moves the sheep off the premises for immediate slaughter, so that he is required to treat them before the slaughter. The Department reply in a memorandum printed in Appendix X that Article 7(1) is not intended to have the effect that sheep being moved for slaughter under Article 6(1)(b) should be required to be treated for sheep scab. They accept, however, that this is a possible construction of the two articles read together and that Article 7 should have been phrased differently to provide for a choice between treating or slaughtering the animals. They propose to amend the provision at the earliest opportunity. The Committee reports Article 7(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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