Joint Committee on Statutory Instruments Twelfth Report


TWELFTH 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.

EDUCATION (FEES AND AWARDS) REGULATIONS 1997 (S.I. 1997/1972)

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

  Paragraph 7 of the Schedule to these Regulations provides that "a person who is the spouse of an EEA migrant worker who - (a) is installed in the United Kingdom with his spouse" is a person who has a connection with the United Kingdom. The Committee asked the Department whether it is (i) the EEA migrant worker or (ii) the spouse of that worker who must comply with the requirement in sub-paragraph (a). The Department for Education and Employment reply in a memorandum printed in Appendix I that the intention is that the spouse of the worker must comply with the requirement. The Department accept that the drafting is not as clear as it might be, and undertake to amend the paragraph when amending Regulations are next made. The Committee reports paragraph 7 of the Schedule to the Regulations for defective drafting, acknowledged by the Department.

EDUCATION (ASSISTED PLACES) REGULATIONS 1997 (S.I. 1997/1968)

  3. The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in two places.

  These Regulations prescribe arrangements for pupils who are eligible to continue to hold assisted places at independent schools in England and Wales by virtue of section 2 of the Education (Schools) Act 1997. The rules for determining the amount of remission of fees are contained in regulations 10 to 13, 15 and 16 (and the Schedules). Regulation 14 requires the school to determine remission questions for each school year (or, in certain circumstances, part of a school year). Regulation 11(5) provides that regulations 11, 12 and 13 "shall have effect notwithstanding anything in regulation 14 or any other provision of these Regulations".

  The Committee asked the Department firstly to explain why regulations 11, 12 and 13 are to "have effect notwithstanding anything in regulation 14". In a memorandum printed in Appendix II the Department for Education and Employment explain that regulation 14 provides that schools must determine "remission questions" for every assisted place holder for each whole school year, or in some circumstances for each part year. However, regulations 11 to 13 place certain restrictions on the amount of fee remission to which parents of assisted pupils would otherwise be entitled. Regulation 11(5) is intended to ensure that, where any restriction is applicable in the case of an assisted pupil, the duty imposed on his school by regulation 14 to determine remission questions would not invariably arise. The Committee accepts that, in such case, regulation 14 must be read subject to the remission rules which override that regulation.

  The Committee asked the Department secondly what provisions could be contemplated by the reference in regulation 11(5) to "any other provision of these Regulations". The Department reply in their memorandum that this provision could bring in regulation 16, which provides that fees are to be remitted in accordance in Schedule 2 but which might not apply in a case where one of the restrictions on the remission of fees specified in regulations 11 to 13 had effect. The Committee reports regulation 11(5) as requiring the elucidation provided in two respects.

TELECOMMUNICATIONS (VOICE TELEPHONY) REGULATIONS 1997 (S.I. 1997/1886)

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

  Regulation 3(1) modifies the British Telecommunications and Kingston Licences by incorporating provisions as set out in Schedule 1. The Committee asked the Department to explain the effect of regulation 3(2), which deems that "the modifications . . . shall have effect as if they were made under section 12 of the Act [the Telecommunications Act 1984] by the Director" that is, the Director General of Fair Trading. The Department explain in a memorandum printed in Appendix III that regulation 3(2) ensures that the modifications made by these Regulations (which are made under section 2(2) of the European Communities Act 1972) have effect within the scheme of the 1984 Act. The intention is that the modifications made by these Regulations may be amended by the Director under sections 12 to 15 of the 1984 Act, without the need for any further regulations. The Committee considers that treating the modifications as if made under section 12, without more, is an inadequate way of indicating the consequences which are to follow. If words such as "and accordingly may be modified by him under that section" had been added the intention would have been clear. The Committee therefore reports the provision for defective drafting.

  Regulation 5(3) disapplies regulations made under section 27A of the 1984 Act "in relation to any relevant Licensee in so far as that power is exercisable in respect of the target indicators for services to which the Voice Telephony Directive applies". The Committee asked the Department whether any such regulations are in force for any of the relevant licences, and secondly what is the intended effect for any future regulations. The Department reply that there are no regulations currently in force for any relevant license. They state that the intended effect in respect of future regulations is that none could be made which were capable of having effect in relation to the target indicators for services to which the Voice Telephony Directive applies, and that that limitation would cease automatically on repeal of that Directive. The provision is, in the Committee's view, objectionable on two grounds. First, it is ineffective: regulations made now cannot inhibit the future exercise of a power when the power itself has not been restricted in its scope. Secondly, it is unnecessary: future regulations under section 27A of the 1984 Act should simply not be made which conflict with the Directive. The Committee notes, incidentally, the Department's remark (in paragraph 5) that regulation 5(3) was also intended to secure that there was no partial repeal of section 27A. The Committee wishes to emphasise that enacting regulation 5(3) could not have the effect of partially repealing a provision of an Act of Parliament. The Committee reports regulation 5(3) for defective drafting.

ST MARY'S MUSIC SCHOOL (AIDED PLACES) AMENDMENT REGULATIONS 1997 (S.I. 1997/1640)

EDUCATION (ASSISTED PLACES) (SCOTLAND) AMENDMENT REGULATIONS 1997 (S.I. 1997/1641)

  5. The Committee draws the special attention of both Houses to the St Mary's Music School (Aided Places) Amendment Regulations 1997 on the ground that they are defectively drafted and to the Education (Assisted Places) (Scotland) Amendment Regulations 1997 on the grounds that they are defectively drafted and that their form is defective.

  Both of these Regulations amend, in regulation 2, the definition of "parents" contained in the principal Regulations of 1995. The new definition is the same in both cases, and is set out in sub-paragraphs (b) to (e). The Committee asked whether the words "in the ordinary case" in sub-paragraph (a) are intended to indicate a case not dealt with by any of sub-paragraphs (b) to (e). The Scottish Office Education and Industry Department reply in the two memoranda printed in Appendix IV that the words are intended to indicate the case of a child who has a father or mother (or the survivor of them) and is not dealt with by any of sub-paragraphs (b) to (e). The Committee considers that, since "the ordinary case" has no natural meaning and the cases described in sub-paragraph (b) and (c) are also cases of a child who has a father or mother, sub-paragraph (a) ought to have been drafted in terms excluding the application of any of the sub-paragraphs that follow it. The Committee therefore reports regulation 2 of each of these Regulations for defective drafting.

  The Committee also asked the Department why, in the Education (Assisted Places) (Scotland) Amendment Regulations 1997, new Schedule 2 to the 1995 Regulations was printed on page 4 and not page 3. This means that the instrument takes up 6 pages rather than 4, and is consequently more expensive than it need have been. The Department say in their memorandum that they have no control over the printing of an instrument and that it is a matter for the Stationery Office. As Her Majesty's Stationery Office say, however, in a letter (and draft circular for Departments) communicated to the Committee, the ultimate responsibility for the page content of statutory instruments rests with the Department: it is for the Department to give correct instructions as to layout when they return the press proof to the printer. It is the Committee's view that that correctly states the responsibilities attaching to the printing of statutory instruments. The Committee accordingly reports the Regulations as being defective in form in that they contain blank space which ought to have been utilised to carry the text which followed on the next page.

  The Committee takes this occasion to remind Departments of their responsibility as regards printing as indicated above.

AGRICULTURAL HOLDINGS (UNITS OF PRODUCTION) ORDER 1997 (S.I. 1997/1962)

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

  Article 1(3) provides that any reference to a Community reference is "to that instrument and any amendment of such instrument as may exist on the date this Order is made". The Committee asked the Department whether this is intended to refer to the adoption, the publication, or the entry into force of any such instruments or amendments. The Ministry of Agriculture, Fisheries and Food reply in the memorandum printed in Appendix V that article 1(3) is intended to refer to amendments which are in force on the date the Order is made. They accept that this could be made more explicit and state that it will be "borne in mind" for future Orders. The Committee considers that the words used are unacceptably imprecise and ought to be amended, and reports article 1(3) for defective drafting, acknowledged by the Department.

RENT OFFICERS (HOUSING BENEFIT FUNCTIONS) ORDER 1997 (S.I. 1997/1984)

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

  By article 3(1) and Schedule 1 Part III a rent officer must give notice to the local authority of his determination of a reference rent within "the relevant period", which in a case where he requires further information is not to begin until he receives the information. Article 5 enables the rent officer to ask the authority for further information and disapplies, until he receives that information, the provisions imposing on him a duty to make and give notice of his determination. The Committee asked the Department to explain why the second limb of article 5 is necessary. The Department of the Environment, Transport and the Regions reply in a memorandum printed in Appendix VI that, while they agree that this provision "is not strictly necessary", they consider that it "helps users of the legislation". The Committee has already reported this Session on a similar provision contained in S.I. 1997/778[2] which (contrary to the Department's contention) it finds indistinguishable from the provisions of the present Order. The Committee accordingly restates its conclusion that this duplicated provision is unnecessary and as such is likely to be a source of confusion, not of illumination, to attentive readers of the instrument. The Committee reports the second limb of article 5 for defective drafting.

EDUCATION (SCHOOL INSPECTION) REGULATIONS 1997 (S.I. 1997/1966)

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

  Regulation 4(1)(a) prescribes a period during which the Chief Inspector is to secure that certain primary and secondary schools are inspected. The period begins on 1 September 1994; before the Regulations came into force. The Committee asked the Department to explain the effect of imposing this duty in relation to the period between 1 September 1994 and 1 September 1997 when the Regulations came into force. The Department for Education and Employment explain in a memorandum printed in Appendix VII that these Regulations consolidate the Education (School Inspection) (No. 2) Regulations 1993 as amended and that regulation 4(1)(a) repeats the whole of the period including the period mentioned in the previous Regulations. They contend that "it is clear" that a school which was inspected between 1 September 1994 and 1 September 1997 need only be inspected once in that period and that a school which was not inspected in that period must be inspected before 1 August 1999. The Committee considers that the provision reveals a fundamental misunderstanding of the legislative situation which arises on a consolidation and in particular the ineffectiveness (without express statutory authority) of a purported retrospective imposition of a duty by the successor instrument. Until revoked, the 1993 Regulations imposed this duty on the Chief Inspector and all that these Regulations could do was to impose the duty for the future, whilst making provision excluding the new duty where it had been discharged during the period regulated by the 1993 Regulations. The Committee reports regulation 4(1)(a) for defective drafting.

  The Committee asked the same question in respect of the requirement imposed by regulation 12(1)(b) (denominational schools). The Department give the same answer in their memorandum as for regulation 4(1)(a): the Committee reports regulation 12(1)(b) for defective drafting.

NATIONAL HEALTH SERVICE PENSION SCHEME (AMENDMENT) REGULATIONS 1997 (S.I. 1997/1888)

  9. The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation which shows that the provision in question is defectively drafted.

  Regulation 7(2) inserts into the National Health Service Pension Scheme Regulations 1995 a definition of "Doctors' Retainer Scheme" as having "the same meaning as given at paragraph 39 of the Statement" referred to. The Committee asked the Department to state what this definition is and why the text of it was not set out in the Regulations. The Department of Health attach the definition (in paragraph 39 of the Statement) to their memorandum, which is printed in Appendix VIII. They state that they thought it preferable to define the term by reference because the full definition was very long in comparison with the other definitions in the 1995 Regulations, and consider that this will not inconvenience the principal users of the Regulations (officers of the Department's NHS Pensions Agency). The Committee accepts the Department's view of the balance of convenience to users in this case. The text of the Statement shows, however, that the definition in regulation 7(2) is wrong in suggesting that "Doctors' Retainer Scheme" set out in paragraph 39 of the Statement gives a meaning to that expression. It only describes the Scheme and this is the word which should have been used in the definition. The Committee reports regulation 7(2) of the present Regulations as requiring the elucidation provided by the Department's memorandum which shows that the provision in question is defectively drafted.

FAMILY LAW ACT 1996 (PART IV) (ALLOCATION OF PROCEEDINGS) ORDER 1997 (S.I. 1997/1896)

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

  Article 4(1) provides that, subject to certain specified provisions (including paragraph 1 of Schedule 7 to the 1996 Act) proceedings under Part IV of that Act may be commenced in a county court or in a family proceedings court. The Committee asked the Department to explain the significance of the reference to paragraph 1 of Schedule 7 to the 1996 Act (which contains only definitions of expressions used in that Schedule). The Department explain in the memorandum printed in Appendix IX that section 53 of the 1996 Act and Schedule 7 give the courts power to transfer certain tenancies in the context of proceedings under Part IV of the Act. Paragraph 1 of Schedule 7 includes a definition of "the court" as "not [including] a magistrates' court". In other words, magistrates' courts do not have jurisdiction to make orders under Schedule 7. Paragraph 1 of Schedule 7 was included in article 4(1) to draw attention to the limitations on the broad choice of venue for commencing proceedings otherwise provided by article 4(1). The Committee reports article 4(1) as requiring the elucidation provided by the Department's memorandum.




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

2   See Rent Officers (Housing Renewal Grants Functions) Order 1997 (S.I. 1997/778): Fourth Report, Session 1997-98, paragraph 8. Back


 
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