Joint Committee on Statutory Instruments Tenth 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 the Environment, Transport and the Regions in connection with the Motor Vehicles (Tests) (Amendment) (No. 2) Regulations 1997 (S.I. 1997/1679) is printed in Appendix I to this Report.


  3. 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 they require elucidation in two other places.

  Regulation 38 refers to a member's death grant which any payments made under paragraph (1) of it must not exceed. The Committee asked the Department of the Environment, Transport and the Regions to explain what "death grant" covers and why it is necessary, in paragraph (7), to treat a payment made under paragraph (1) as a payment made "by way of death grant". The Department explain in a memorandum printed in Appendix II that they wished (for inheritance tax reasons) to avoid providing that any person becomes entitled to a death grant. Hence the drafting of regulation 38 merely provides for the calculation of the maximum amount of a grant for which there is no entitlement (and not what constitutes it). And since regulation 38 does not confer an entitlement to a payment in the event of death the purpose of paragraph (7) is, nonetheless, to make other regulations which apply to payments by way of death grant (such as regulation 21(4)) apply to any payment under paragraph (1). The Committee reports regulation 38 on the ground that it requires the elucidation provided.

  Regulation 71(6) provides that "the new administering authority must apply and invest the sum received as mentioned in regulation 64". The Committee asked the Department to explain the reference to "the sum received as mentioned in regulation 64", given that regulation 64 does not refer to receiving sums of money. The Department reply that "the sum received" refers to a sum received under regulation 71(5) and the phrase "as mentioned in regulation 64" refers to the investment and use of sums under regulation 64; in other words, the new authority must apply and invest the sum received in accordance with the provisions of regulation 64. The Committee do not consider that the provision as currently worded achieves the intention of the Department: if it had said "must, in accordance with regulation 64, apply and invest the sum received by virtue of regulation 71(5)" the intention would have been achieved. The Committee therefore reports regulation 71(6) for defective drafting.

  Regulation 123(1) allows a member to count the excess transferred-in service as a period which counts towards his total membership (for certain regulations). The Committee asked the Department to explain the purpose and effect of regulation 123(3) which provides that "a period which may be counted under paragraph (1) counts as its actual length". The Department accept that the proposition in regulation 123(3) is not strictly legally necessary, but submit that its inclusion is helpful for two reasons. First, it emphasises that the excess transferred-in service represents a period actually served, which contrasts with the entirely artificial concept of the "credited period". Secondly, it avoids any argument that in the case of a part-timer the rule in regulation 11(3) should be applied. The Committee reports regulation 123(3) as requiring the elucidation provided by the Department.

  The Committee asked the Department to explain, in regulation 133(1), the application of section 105 in relation to a magistrates' courts committee with the omission of paragraph (3) of regulation 103. The Department explain that the reference should have been to the omission of the words "(otherwise than in the exercise of discretion)" in regulation 105(1)(a), and not to the omission of regulation 105(3). They undertake to correct the mistake when the Regulations are next amended. The Committee reports regulation 133(1) for defective drafting, acknowledged by the Department.

  The Committee wishes finally to note that, particularly given the complexity of their subject matter, these Regulations are for the most part drafted with an admirable clarity. They might usefully be used as a model for the drafting of other statutory instruments.

* 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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