Joint Committee on Statutory Instruments Eighth Report


EIGHTH 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 Ministry of Agriculture, Fisheries and Food in connection with the Welfare of Animals (Transport) Order 1997 (S.I. 1997/1480) is printed in Appendix I to this Report.

EDUCATION (INDIVIDUAL PUPILS' ACHIEVEMENTS) (INFORMATION) REGULATIONS 1997 (S.I. 1997/1368)

  3. The Committee draws the special attention of both Houses to these Regulations on the ground that they make an unusual and unexpected use of powers.

  The Regulations are made under section 408 of the Education Act 1996, section 408(1) of which provides that the Secretary of State may require "every maintained school, the local education authority, the governing body or the headteacher to make available . . . such information relevant for the purposes of any of the relevant provisions of this Part . . . as may be prescribed". Section 408(2)(d) provides that such information may relate to "the educational achievements of pupils at such categories of school as may be prescribed". The Committee has twice reported on the use by the Department for Education and Employment of the predecessor to this statutory power (in the Education Reform Act 1988) to require schools to provide information relating to "all pupils at schools in England" (23rd Report, Session 1995-96 and 6th Report, Session 1996-97). On both occasions the Committee concluded that the power to require the provision of information relating to "categories" of school had not been intended by Parliament to extend to require the provision of information relating to "all schools in England". The Department contended that "all schools in England" is a distinct category of school (it is not, for example, all schools in England and Wales) and is, therefore, an appropriate use of the power.

  The same point arises on these Regulations in relation to the powers in section 408 of the 1996 Act. Regulation 4(5) and Schedule 3 together require a headteacher's report to include information relating to the educational achievements of all pupils at "schools in England". The Department state in a memorandum printed in Appendix II that they remain of the view they took on previous occasions. The Committee repeat their conclusion that the Department is making use of a power in a way that was not intended by Parliament in granting the power. If it had been Parliament's intention to allow regulations to require schools to provide information relating to all schools in England, it would have been a simple matter to word the 1988 Act and the 1996 Act differently, so that the required information could include "the educational achievements of pupils at all schools or at such categories of school as may be prescribed". The Department state that they "hope" to use the next Education Bill to amend section 408 of the 1996 Act to take account of the views of the Committee. The Committee reports regulation 4(5) and Schedule 3 of the Regulations for making an unusual and unexpected use of powers.

HONG KONG (EXTRADITION) ORDER 1997 (S.I. 1997/1178)

  4. The Committee draws the special attention of both Houses to this Order on the ground that it requires elucidation.

  The Committee asked the Home Office to explain the effect on section 13 of the Extradition Act 1989 of article 5(c) of the Order, which makes the Secretary of State's warrant for the return of a person "effective . . . notwithstanding . . . section 13", in particular its effect (if any) on that person's right to have the Secretary of State's decision judicially reviewed. The Department explain in a memorandum printed in Appendix III that article 5(c) makes provision in cases where a warrant has been issued for the return of a person to Hong Kong (ie. to the British colony of Hong Kong), but that the return of that person is not effected until after 1st July 1997, when Hong Kong ceased to be a colony and became the Hong Kong Special Administrative Region. Article 5(c) provides that such a warrant is effective without regard to section 13, which applies to warrants signed after 1st July 1997 for the return of a person to the Hong Kong Special Administrative Region. One particular effect of article 5(c) is that a pre-1st July 1997 warrant remaining for execution after that date cannot be impugned for not complying with the formal requirements of section 13(9). As regards the availability of judicial review, the Department's memorandum makes it clear that that remedy remains available since every person subject to an order for a return to a colony (as in the case of warrants provided for by article 5(c)) has a right apart from section 13 to seek judicial review of that order. This right apart from section 13 is not affected by article 5(c). The Committee reports article 5(c) on the grounds that it requires the elucidation provided by the memorandum.

MERCHANT SHIPPING (CARGO SHIP CONSTRUCTION) REGULATIONS 1997 (S.I. 1997/1509)

  5. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in two places, and that the Explanatory Note is incomplete.

  Regulation 4(c) disapplies the Regulations in cases where a ship would not have been in United Kingdom waters "but for stress of weather or any other circumstances that the master, or owner, or the charterer (if any), could have prevented". The Committee asked the Department of the Environment, Transport and the Regions whether the word "not" should have appeared before "have prevented". In a memorandum printed in Appendix IV the Department admit that "not" should appear in the provision, and undertake to insert the word at the earliest opportunity. The Committee reports regulation 4(c) for defective drafting, acknowledged by the Department.

  Regulation 14 excepts from the application of Part III any ship which complies with any of the international conventions or Codes specified in paragraphs (a) to (h) or "(i) with enactments contained in the Merchant Shipping Act 1995 or statutory instruments in so far as they implement the International Convention for the Prevention of Pollution from Ships 1973/78 or the Codes listed above". The Committee asked the Department whether the words "the Codes listed above" are intended to refer to the Marpol regulation specified in paragraph (a) and the regulation of the Convention specified in paragraph (h), and why the enactments referred to in paragraph (i) are not specified. With regard to the first question, the Department accept that paragraph (i) does not achieve their policy intention (which was to refer to enactments implementing paragraphs (a) to (e) in regulation 14). They also accept, in their response to the second question, that the enactments (which they list in their memorandum) should have been specified in the provision. The Department conclude that the provision is unnecessary, and even unhelpful. The Committee reports regulation 14(i) for defective drafting, acknowledged by the Department.

  The Explanatory Note to these Regulations states that the Regulations "implement in part EC Directive 94/57". The Committee asked the Department to explain, as they are required to do in the Explanatory Note to the Regulations by paragraph 2.101(a) of Statutory Instrument Practice, what provisions of the Directive are implemented by the Regulations (and by what provisions of them). The Department reply that regulation 5 implements (in part) article 14 of Council Directive 94/57/EC on common rules and standards for ship inspection and survey organisations and for the relevant activities of maritime organisations, and apologise for the omission from the Explanatory Note. The Committee reports the Explanatory Note on the ground that it is incomplete, acknowledged by the Department.

MERCHANT SHIPPING (SAFE MANNING, HOURS OF WORK AND WATCHKEEPING) REGULATIONS 1997 (S.I. 1997/1320)

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

  The Committee asked the Department whether the reference in regulation 16(1)(b)(ii) to deficiency of a kind specified in regulation 15(2) should be to regulation 15(3). In a memorandum printed in Appendix V the Department of the Environment, Transport and the Regions admit that the reference should be as the Committee suggested. The Committee reports regulation 16(1)(b)(ii) for defective drafting, acknowledged by the Department.

  The Committee also asked the Department to explain why, given that the duty imposed by regulation 9(1) is, if breached, an offence by the company under regulation 17(1), if it becomes also the duty of the employer under regulation 9(3) no offence is committed by the employer under regulation 17. The Department agree that the Regulations should provide that it is an offence for an employer to breach the duty imposed by regulation 9(3). The Committee reports regulation 17(1) for defective drafting, acknowledged by the Department.

  Finally, the Committee asked the Department whether the reference in regulation 17(2) to regulation 4(b) should be to regulation 4(6). The Department admit this error also. The Committee reports regulation 17(2) for defective drafting, acknowledged by the Department.

  The Department state that they regret these mistakes and undertake to correct them in amending Regulations to be made very shortly.

ANTARCTIC ACT 1994 (COMMENCEMENT) ORDER 1997 (S.I. 1997/1411)

  7. The Committee draws the special attention of both Houses to this Order on the ground that its Explanatory Note is incomplete.

  The Committee asked the Department whether any prior commencement orders have been made under the Antarctic Act 1994 and, if so, what they are and why such information is not provided by the Explanatory Note, as required by paragraph 2.84 of Statutory Instrument Practice. The Foreign and Commonwealth Office reply in a memorandum printed in Appendix VI that there have been two prior commencement orders: the Antarctic Act 1994 (Commencement) Order 1995 (S.I. 1995/2748), which brought into force sections 1, 2, 8 to 32, part of 33 and 34 to 36 on 1st November 1995, and the Antarctic Act 1994 (Commencement) Order 1996 (S.I. 1996/2666), which brought into force section 7 on 1st November 1996. The Department apologise for the oversight. The Committee reports the Order on the ground that its Explanatory Note is incomplete.

MEDICINES (PRODUCTS FOR ANIMAL USE - FEES) REGULATIONS 1997 (S.I. 1997/1469)

  8. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted and that their Explanatory Note is incomplete.

  Regulation 16 provides inter alia that any fee payable under the Regulations shall be payable within 30 days of the date due (as defined in regulation 18(6)(a)). Regulation 17(1) provides that fees (other than fees for inspections) shall be payable at the time of application. The Committee asked the Department whether these two provisions are inconsistent and what was the policy intention behind them. The Ministry of Agriculture, Fisheries and Food accept in a memorandum printed in Appendix VII that the provisions are inconsistent and state that they will not seek to enforce regulation 17(1). They undertake to amend the Regulations to correct the position at the next available opportunity. The Committee reports regulations 16 and 17 for defective drafting, acknowledged by the Department.

  The Committee asked the Department to indicate, as they are required to do in the Explanatory Note by paragraph 2.101(a) of Statutory Instrument Practice, what Community obligations are being implemented by the Regulations. The Department state that, in part, the Regulations supplement the Marketing Authorisations for Veterinary Products Regulations 1994 (S.I. 1994/3142) in implementing Council Directive 93/40/EC amending Directive 81/85/EEC and Directive 81/852/EEC, and admit that this information should have been included in the Explanatory Note. The Committee reports the Explanatory Note to the Regulations for being incomplete, 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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