Joint Committee on Statutory Instruments Sixth Report


SIXTH 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 Trade and Industry in connection with the Timeshare Regulations 1997 (S.I. 1997/1081) is printed in Appendix I to this Report.

  3. A memorandum by the Scottish Office Pensions Agency in connection with the Local Government Superannuation (Scottish Environment Protection Agency) (Scotland) Regulations 1997 (S.I. 1997/1143) is printed in Appendix II to this Report.

  4. A memorandum by the Department for Education and Employment in connection with the Education (New Grant-maintained Schools) (Finance) Regulations 1997 (S.I. 1997/956) is printed in Appendix III to this Report.

LIFTS REGULATIONS 1997 (S.I. 1997/831)

  5. The Committee draws the special attention of both Houses to these Regulations (made under section 2(2) of the European Communities Act 1972) on the grounds that they are defectively drafted in five places.

  The definition in regulation 2(2) of "installer of a lift" includes the expression "natural or legal person". The Committee asked the Department of Trade and Industry why this expression was used, rather than the word "person" which is usually used in United Kingdom legislation. The Department reply in a memorandum printed in Appendix IV that the Regulations implement Directive 95/16/EC of the European Parliament and Council, and that the Regulations mainly adopt a "`copy-out' approach whereby the terms of the Directive, particularly those which expressly define words and expressions used, are used wherever possible". They explain that the definition of "installer of a lift" uses the words "natural or legal person" imported from the Directive. The Committee considers that the Department's copy-out approach has resulted in a definition which is defectively drafted in terms of United Kingdom legislation. For the purposes of that legislation the Interpretation Act 1978 (formerly 1889) defines "person" as including any body of persons corporate or unincorporate. It therefore covers all forms of natural or legal persons. The essential purpose of the Interpretation Act (past and present) is to enable United Kingdom legislation to use expressions like "person" in reliance on the meaning it gives them. The definition of "installer of the lift" thus not only contains unnecessary words but also subverts that purpose. The Committee reports regulation 2(2) for defective drafting.

  The words "placing on the market of the lift" is also defined in regulation 2(2), but this definition is disapplied in relation to regulations 9(3), 14 and 19. The Committee asked the Department why these exclusions were considered necessary, given that the expression is not used in any of the regulations. The Department accept that the reference to regulation 9(3) is not necessary, but contend that the definition has, to achieve the Department's policy, to be disapplied in respect of regulation 14 because it includes the phrase "the person who places that lift . . . on the market" and regulation 19 because it includes the phrase "the person who places it [the lift or safety component] on the market in the United Kingdom". It is plain to the Committee, however, that since the precise expression defined as a term of art is not used in regulations 14 and 19 it cannot be correct to disapply it. The Committee reports regulation 2(2) for defective drafting in this respect also.

  Regulation 7 makes the Regulations inapplicable to a lift as respects which the Scheduled essential health and safety requirements relate to risks wholly or partly "covered by other Community Directives applicable to that lift". The Committee asked the Department whether this provision is intended to make future as well as existing Directives displace these Regulations; and whether "covered" is intended to attract Directives before they have been adopted. The Department answer that regulation 7 is intended to implement the provisions of Article 1.5 of the Directive, and that they intend the provision to have an "ambulatory" effect so that it will cause future as well as existing Directives to displace these Regulations. In answer to the Committee's second question the Department state that a risk would not be "covered" by another Community Directive unless it had been adopted.

  The Committee then asked the Department, in respect of "other Community Directives" adopted in the future, when it was intended that the Scheduled health and safety requirements should cease to apply. The Department answer in a further memorandum printed in Appendix IV that those requirements would cease to apply on the date on which the other Directive was required to be applied by the Member States. This would probably be the same as the date of the coming into force of any United Kingdom implementing legislation, but it might not be.

  The Committee considers that regulation 7 is defective in three respects. In the first place, it is not clear whether it applies only to existing Directives or also to future Directives. Secondly, given that it is intended that the regulation should apply to future Directives, it is not clear at what stage it is intended that they will displace the Scheduled health and safety requirements. Finally, this unspecific provision does not accord with proper United Kingdom legislative practice: the proper approach would be to disapply the specific provisions of the Scheduled health and safety requirements as and when necessary. The Committee reports regulation 7 for defective drafting.

  Regulation 8(2)(a) provides that a lift shall satisfy the relevant essential health and safety requirements and goes on to state that "for the purpose of satisfying [those requirements], by calculation or on the basis of design plans, it is permitted to demonstrate the similarity of a range of equipment to satisfy the essential safety requirements". The Committee asked the Department to explain this provision, in particular (a) the relevance of the "similarity of a range of equipment"; (b) who or what gives the permission referred to, and (c) by whom and to whom the demonstration is given. The Department state that regulation 8(2)(a) is copied out from the Directive. They explain in answer to question (a) that there could be various lifts which, for the purposes of satisfying the essential health and safety requirements, have the same characteristics. In answer to question (b) they state that this is a "permissive" provision or option available to the person who is responsible for placing the lift on the market. In respect of question (c) the Department state that the demonstration would normally be done by the "installer of the lift" for a notified body appointed for the purposes of these Regulations or for an enforcement authority.

  The Committee considers that regulation 8(2)(a) is defective in giving no indication that the similarity is a similarity in (physical) characteristics, in failing to transpose the passive "it is permitted" so as to identify who is permitted to demonstrate the similarity and to whom and in the grammatically ambiguous placing of the words "by calculation or on the basis of design plans" so that the sense of the sub-paragraph is further obscured. The Committee therefore reports regulation 8(2)(a)(ii) for defective drafting.

  Regulation 24(1), by way of consequential amendment, firstly (in (a)) adds to Schedule 1 to the Provision and Use of Work Equipment Regulations 1992 the Directive 95/16/EC which these Regulations implement and secondly (in (b)) provides that for the purposes of the enforcement of regulation 10 of those Regulations these Regulations are to have effect "as if the addition . . . had been made by means of regulations made under section 15 of the Health and Safety at Work etc. Act 1974". Regulation 24(2) makes a similar amendment and deeming provision as respects the corresponding Northern Ireland legislation. In answer to the Committee's question as to the intended effect of the second proposition, the Department explain that, since it was necessary to provide for the enforcement of the Directive as regards those other Regulations but those others are made under more restricted powers than section 2(2) of the European Communities Act 1972, it was necessary "to deem the vires of the 1974 Act for that purpose". This explanation makes no sense to the Committee. It would be sufficient, for the purpose of providing for the enforcement of the Directive through the other Regulations, simply to add the Directive to Schedule 1 to those Regulations, as sub-paragraph (a) does. It is unnecessary, and makes no legal sense, to "deem" vires to exist which do not. The Committee accordingly reports regulation 24 for defective drafting.

  The defects in the drafting of this instrument identified by the Committee are to a large degree due to the Department's decision to copy out the Directive which the Regulations implement. The Committee emphasises that verbatim transposition of a Directive is no justification for drafting which is seriously defective by reference to the standards of proper legislative practice in the United Kingdom.

NATIONAL HEALTH SERVICE (FUND-HOLDING PRACTICES) (SCOTLAND) REGULATIONS 1997 (S.I. 1997/1014)

  6. These Regulations contain provisions relating to the recognition by Health Boards of fund-holding practices, which may be primary care purchasing practices, standard fund-holding practices or purchasing co-operatives. Regulation 5 provides that the members of a practice may appeal to the Secretary of State against refusal of recognition by the Health Board. Regulation 4(1)(c) provides that if a Health Board refuses recognition it shall "except in the case of an application for recognition as a purchasing co-operative, inform each member of the practice of the right to appeal to the Secretary of State against the refusal". The Committee asked the Scottish Office Department of Health why the Health Board is not required to inform the members of a purchasing co-operative of their right to appeal against the determination. The Department explain in a memorandum printed in Appendix V that the Regulations do not confer a right of appeal in the case of a purchasing co-operative for the reasons of policy given in the memorandum. The Committee understands that this may have been the policy intention behind the provision, but considers that as currently drafted the Regulations fail to achieve this intention: regulations 2, 3, 4 and 5 (read with the applicable definitions) do not differentiate between the three types of fund-holding practices as regards applications for recognition, the procedure to be followed by a Health Board in making its decisions and the right to appeal. In effect regulation 5 does give a right of appeal while regulation 4(1)(c) makes an exception to the requirement for notification of this right which is inconsistent with that right. Since regulation 5 is the provision which ought to exclude an appeal in the case of such a practice, the Committee reports regulation 5 for defective drafting.

  Regulation 21(3) refers to a preparatory period, during which a greater proportion of the management allowance may be spent on the purchase of office equipment. The Committee asked the Department to explain the nature and duration of this period. The Department, in their memorandum printed in Appendix V, explain that the preparatory period is a period of time, usually one year, during which the members of the practice must show that they are capable of managing their medical practices in an effective manner and that they have access to sufficient equipment and resources (including staff) to allow them to manage an allotted sum effectively. The Committee considers that the provision is imprecise and that further information in the Regulations would have been desirable: it reports regulation 21(3) on the grounds that it requires the elucidation provided.

EDUCATION (GRANT-MAINTAINED AND GRANT-MAINTAINED SPECIAL SCHOOLS) (FINANCE) REGULATIONS 1997 (S.I. 1997/996)

  7. Regulation 48(7) requires an aggregate amount of maintenance grant to be calculated in the case of certain schools. The Committee asked the Department for Education and Employment what is represented by this aggregate amount since this is not stated in the provision. The Department explain in a memorandum printed in Appendix VI that the aggregate amount is the "CFF floor" (as defined in regulation 39(2)) for the schools described in the paragraph, and admit that the wording is "not as clear as it might be". They agree to deal with this in next year's Regulations. The Committee reports regulation 48(7) for defective drafting.

  Regulation 51 allows for further revisions of certain determinations. The Committee asked the Department to explain why, in doing so, regulation 51 refers to determinations revised in accordance with its own terms as well as those of regulations 50 and 53. The Department state that the reference is an error, and that the provision should refer to regulations 50, 52 (not 51) and 53. The Committee reports regulation 51 for defective drafting, acknowledged by the Department.

PUBLIC ORDER (PRESCRIBED FORM) REGULATIONS (NORTHERN IRELAND) 1997 (S.R. 1997/235)

  8. The Committee draws the special attention of both Houses to these Regulations on the ground that they may be ultra vires.

  By the terms of the substituted provisions of article 3 of the Public Order (Northern Ireland) Order 1987 a notice to the police about an intended public procession -

  The Committee therefore asked the Northern Ireland Office what authorises the inclusion in the prescribed form in the present Regulations of the further details of the parade prescribed in section 2 of the form about uniforms, banners and flags and about any religious service or public meeting which is the purpose of the parade and the details of further destinations of the parade members prescribed in section 3. The Department reply in the first of two memoranda printed in Appendix VII that they consider that the list of matters to be specified under article 3(3) of the Public Order (Northern Ireland) Order 1987 to be given by a person proposing to organise a public procession does not confine the matters which the Secretary of State may include when prescribing, under article 3(2), the form in which the notice is to be given. Article 3(2) itself states that the notice shall be given "in writing in such form as may be prescribed by regulations made by the Secretary of State". In the second memorandum printed in Appendix VII the Department add that in their view the Secretary of State may include any matter relevant to the exercise of the powers of the police under the Public Order (Northern Ireland) Order 1987. The Department conclude, however, that in the light of the Committee's questions about their powers they will revise the enabling power in article 3 of the 1987 Order (as amended) in the forthcoming Bill relating to public processions and make fresh regulations thereunder as soon as practicable. It is the view of the Committee that the Public Order (Northern Ireland) Order 1987 (as amended) almost certainly does not give the Secretary of State power to prescribe that the organiser of the procession must specify anything other than the five points listed above. In the context of the retained list of matters, without any acknowledgement that the list is not exhaustive, the Committee considers that the newly added power to prescribe the form of the notice to be given to the police is simply a power as to its form, not a power as to its contents as well as its form. The Committee therefore reports the Public Order (Prescribed Form) Regulations (Northern Ireland) 1997 on the grounds that it may be ultra vires.


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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