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 Her Majesty's Treasury in connection with
the Banking Act 1987 (Exempt Transactions) (Amendment) Regulations
1997 (S.I. 1997/1866) is printed in Appendix I to this Report.
3. A memorandum by the Northern Ireland Office in connection
with the Royal Ulster Constabulary Reserve (Full-time) (Appointment
and Conditions of Service) (Amendment) Regulations 1997 (S.R.
1997/363) and the Royal Ulster Constabulary Reserve (Part-time)
(Appointment and Conditions of Service) (Amendment) Regulations
1997 (S.R. 1997/364) is printed in Appendix II to this Report.
4. A voluntary memorandum by the Department of the Environment,
Transport and the Regions in connection with the Health and Safety
(Fees) Regulations 1997 (S.I. 1997/2505) is printed in Appendix
III to this Report.
REGULATIONS 1997 (S.I. 1997/1901)
5. The Committee draws the special attention of both Houses
to these Regulations on the grounds that they are defectively
drafted in two places.
The definition of "keeper" in regulation 2(1) refers
to "natural or legal person". The Committee asked the
Department to explain why they did not use the term "person"
instead, given that the Interpretation Act 1978 defines "person"
in legislation as including any body of persons corporate or unincorporate.
The Department answer in a memorandum printed in Appendix IV that
the definition is copied from Article 2 of Council Regulation
EC/820/97. They contend that had the term "person" been
used, the provisions relating to "keepers" would be
enforceable against unincorporated bodies, which would have exceeded
the obligation in the Council Regulation on enforcement. The Committee
notes that "any natural or legal person" is the expression
used in the Treaty (see Article 173) when it is intended to have
a comprehensive coverage, and is of the view that that expression
has the same scope as the word "person" as defined in
the Interpretation Act. The Committee repeats its conclusion in
respect of a similar definition in the Lifts Regulations (S.I. 1997/831)
1that the definition
of "person" in the Interpretation Act 1978 covers all
forms of natural or legal persons and that "the essential
purpose of the Interpretation Act is to enable United Kingdom
legislation to use expressions like "person" in reliance
on the meaning it gives them". Definitions such as the definition
of "keeper" in these Regulations therefore not only
contain unnecessary words but also subvert the purpose of the
Act without being necessary for compliance with the United Kingdom's
Community obligations. The Committee reports regulation 2(1) for
Regulation 4(1) provides that an inspector shall, if necessary
on producing suitable documentation, "have the right at all
reasonable hours to enter any land or premises". The Committee
asked whether it is intended that the power conferred by regulation
4(1) should extend to premises used only as a dwelling. The Department
confirm in their memorandum that it is intended that the power
in regulation 4(1) includes a power to enter dwellings, as the
Regulations are concerned with farm records which are often kept
in farmhouses (i.e. in dwellings). The Committee considers that,
given that there is a common law recognition now clearly affirmed
in the judicial decisions of the House of Lords that a person's
home has a peculiarly protected status, subordinate legislation
should make it explicit when a power to enter premises extends
to dwellings. This could easily have been achieved in these Regulations
by the insertion in regulation 4(1) of such words following "premises"
as "(including a dwelling)". The Committee reports regulation
4(1) for defective drafting.
REGULATIONS 1997 (S.I. 1997/1881)
6. The Committee draws the special attention of both Houses
to these Regulations on the grounds that they are defectively
drafted in two places.
Regulation 11(1) prohibits any person from exporting from
Great Britain to another part of the European Community "any
aquaculture animal or aquaculture product which does not meet,
or is not despatched in accordance with, the requirements of the
relevant provisions of Directive 91/67/EEC (including any option
permitted by that Directive which has been exercised in relation
to its destination)". The Committee asked the Department
to explain the purpose and intended effect of the underlined words.
The Ministry of Agriculture, Fisheries and Food explain in a memorandum
printed in Appendix V that the Directive entitles Member States
to impose extra requirements in addition to those set out in the
Directive, and that the prohibition in the Regulations applies
to these extra requirements. They accept that the wording could
be more precise, and undertake to clarify the meaning of regulation
11(1) when the regulations are next amended. The Committee reports
regulation 11(1) for defective drafting, acknowledged by the Department.
The powers conferred on a veterinary inspector by regulation
15 are made subject by paragraph (1) of that regulation to regulation
10 of the Animals and Animal Products (Import and Export) Regulations
1995 and regulation 13 of the Products of Animal Origin (Import
and Export) Regulations 1996. The Committee asked the Department
to explain the purpose of this subjection. The Department accept
that, since these provisions do not limit the powers conferred
in regulation 15 of the present Regulations, subjecting the powers
to them is misconceived. They undertake to correct the mistake
at the next opportunity. The Committee reports regulation 15(1)
for defective drafting, acknowledged by the Department.
1997 PARTIAL REVOCATION
ORDER 1997 (S.I. 1997/1739)
1997 REVOCATION ORDER
1997 (S.I. 1997/1978)
7. The Committee draws the special attention of both Houses
to these Orders on the ground that the Department failed to notify
the Lord Chancellor and the Speaker that these Orders came into
force before they were laid before Parliament.
The Committee asked the Department whether, given that these
Orders came into force on 18th July and 6th August respectively,
and were not laid before Parliament until 22nd July and 12th August
respectively, notifications that the Orders had come into force
before being laid before Parliament had been sent to the Lord
Chancellor and the Speaker of the House of Commons, as required
by the proviso to section 4(1) of the Statutory Instruments Act
1946. The Department reply in a memorandum printed in Appendix
VI that such notifications had not been sent, apologise and assure
the Committee that procedures have now been put in place to guard
against a recurrence of the error. The Committee hopes that these
procedures are more effective than those which were put in place
after the failure to send a similar notification in respect of
S.I. 1996/2466 in Session 1996-97.
The Committee reports both Orders on the ground that the Scottish
Office failed to comply with the statutory requirement that a
notification be sent to the Lord Chancellor and the Speaker of
the House of Commons when an instrument comes into force before
it is laid before Parliament.
1995 (DETENTION BY
1997 (S.I. 1997/2062)
8. The Committee draws the special attention of both Houses
to this Order on the ground that it requires elucidation.
Section 26(11) of the 1995 Act empowers the Treasury to specify
the titles of officers who are "superior officers" for
the purposes of section 26 (powers of detention and search). Article
2 of this Order specifies for this purpose four specific titles
and "any other title within job band 9". The Committee
asked the Department to explain what is meant by "job band
9", what are the other titles within that job band and why
they are not in terms specified. The Commissioners of Customs
and Excise reply in a memorandum printed in Appendix VII that
the Department has abolished the old civil service grades and
replaced them with 12 job bands. Job band 9 posts broadly equate
to posts previously held by "senior executive officers".
They add that the titles specifically referred to in the Order
are those of persons who would normally exercise the functions
of a "superior officer" but that there may be circumstances
in which persons who would not normally be expected to perform
the role of a "superior officer" have to do so. To list
all such job titles would have unnecessarily lengthened and complicated
the Order. The Committee, considering the context and history
of this power, does not think it is an objectionable use of it
to identify the range of officers by using the expression quoted
above but the Committee reports article 2 of the Order on the
ground that it requires the elucidation provided.
REGULATIONS 1997 (S.I. 1997/1905)
9. The Committee draws the special attention of both Houses
to these Regulations on the ground that they are defectively drafted.
Regulation 14(8) provides that the Minister shall determine
whether to issue a certificate to a proprietor "as soon as
is reasonably practicable and in any event within 14 days".
The Committee asked the Department when the 14 day period is intended
to begin. The Ministry of Agriculture, Fisheries and Food reply
in a memorandum printed in Appendix VIII that the 14 days is intended
to begin on the day on which the application by the proprietor
is made, and state that they will amend the provision to clarify
this at the next opportunity. The Committee reports regulation
14(8) for defective drafting, acknowledged by the Department.
1997 (S.I. 1997/1869)
10. The Committee draws the special attention of both Houses
to this Order on the ground that it is defectively drafted.
The Committee asked the Department to explain, in Part I
of the Schedule, the significance of the asterisks against some
of the entries. The Department of the Environment, Transport and
the Regions reply in a memorandum printed in Appendix IX that
the list in Schedule I is drawn from sources including the International
Code for the Construction and Equipment of Ships Carrying Dangerous
Chemicals in Bulk (the IBC Code) and that the asterisk in the
IBC code in relation to benzene and mixtures containing at least
10% benzene draws attention to a footnote explaining that the
entry relates to certain mixtures. The Department state that the
information in the footnote, and thus the asterisk, is not necessary
for the purpose of listing polluting substances. The Committee
also asked the Department what is meant by the entries relating
to Noxious liquids, such as "Noxious liquid, N.F., (1) n.o.s.
(trade name . . ., contains . . .) S.T.1, Cat.A*". The Department
reply that these entries relate to substances which are not specifically
listed elsewhere in the list, by relation to their pollution category,
and that in these cases the asterisk refers to another footnote
which provides an explanation of the abbreviations in the entries.
The Department state that not all the information listed is necessary
for the purposes of the Regulations. Be that as it may, the result
is that the Schedule is not self-explanatory in that it provides
no explanation of the significance of the asterisks to, and the
meaning of the abbreviations in, some of the entries. The Committee
reports Part I of the Schedule to the Order for defective drafting.
REGULATIONS 1997 (S.I. 1997/1941)
11. The Committee draws the special attention of both Houses
to these Regulations on the grounds that they are defectively
drafted in three respects and that they require elucidation in
Regulation 2(2) provides that "references in these Regulations
to complying with or conforming to the requirements of these Regulations
or any part thereof, in relation to acts done within the territory
of a Member State other than the United Kingdom, are references
to complying with or conforming to the equivalent requirements
of the legislation of that State implementing the Directive".
The Committee asked the Department to explain the purpose and
effect of regulation 2(2), and in particular whether it is intended
to operate in relation to the failure of compliance mentioned
in paragraph 9 of Part II of Schedule 3 to the Regulations. The
Department of the Environment, Transport and the Regions reply
in a memorandum printed in Appendix X that the regulation is intended
to achieve the result that compliance with an equivalent requirement
of the law of another member State (e.g. a requirement equivalent
to regulation 6 to establish technical documentation) is sufficient
compliance with the requirement in e.g. regulation 6. The Department
says that this provision is also to be operative for paragraph
9 of Part II of Schedule 3. Regulation 2(2) does not, in the Committee's
view, achieve these objectives. Firstly, it does not say that
compliance with an equivalent requirement of the legislation of
another member State constitutes sufficient compliance with the
requirement of these Regulations. Instead it focuses on references
to complying with these Regulations. Secondly, it depends
on finding such a reference in the regulation in question. There
is, to take regulation 6(1) and (4) no such reference for regulation
2(2) to build on. Thirdly, regulation 2(2) operates only in relation
to acts done, not also in relation to omissions, which would be
needed to make it operate on paragraph 9 of Schedule 3. For these
reasons the Committee reports the regulation for defective drafting.
Regulation 10(4) requires an enforcement authority to take
certain steps after it takes a decision pursuant to these Regulations
which amounts to or includes a restriction on the placing on the
market of an appliance. The Committee asked the Department to
identify the decision-making powers of an enforcement authority
to which this provision relates. The Department reply that the
relevant powers are those which lead the authority to institute
civil proceedings against a supplier or manufacturer to enforce
by injunction the obligations contained in eg. regulation 8 (suppliers'
duties in respect of non-conforming appliances) and regulation
9 (manufacturers' duties), because, if those proceedings are successful,
they are likely to result in restrictions being imposed on the
placing on the market of an appliance. But it appears to the Committee
that the decisions making these sorts of restrictions are decisions
of the courts before which the enforcement authority institutes
the proceedings. It is not the enforcement authority which "takes
[this] decision" nor can it be naturally said of the court
that it takes a decision "pursuant to these Regulations"
- it adjucates on the civil remedies which it infers are intended
to flow from the breaches of statutory duty involved. Given the
Department's intention, regulation 10(4) should have been framed
in terms of the enforcing authority deciding to institute civil
proceedings for breach of the duties imposed by regulation 8 or
9 which might result in a restriction of the kind specified. The
Committee reports the regulation for defective drafting.
The Committee asked the Department to explain what sanctions
are intended for breach of the duties imposed by regulations 8
and 9. The Department reply that they are intended to be enforced
by civil injunctive proceedings. The Committee considers that,
though this may be implied, it would better reflect current legislative
practice if it were stated expressly that breach of an obligation
such as regulation 8 and 9 is actionable. The Committee reports
regulations 8 and 9 for the elucidation provided.
Paragraph 1(2) of Schedule 3 makes the offence of contravening
paragraph 15(1) triable either way, and, as regards summary conviction,
states the maximum fine in terms of "level 5 on the standard
scale". The Committee asked the Department why the maximum
fine is not expressed in terms of "the statutory maximum".
The Department reply that they were concerned that "the statutory
maximum" might in the future exceed the maximum fine on summary
conviction permissible under paragraph 1(1)(d) of the European
Communities Act 1972. However, the Committee notes that, in Schedule
1 to the Interpretation Act 1978, "the standard scale"
is defined only for summary offences. In the Committee's view,
the correct position is that the maximum fine which can be imposed
on summary conviction for an offence made under section 2(2) of
the 1972 Act is "the statutory maximum" if the offence
is triable either way, or "level 5 on the standard scale"
if it is only triable summarily. The Committee reports paragraph
1(2) of Schedule 3 for defective drafting.
1997 (S.I. 1997/1529)
12. The Committee draws the special attention of both Houses
to this Order of Council on the grounds that it is defectively
drafted in two places.
The Committee asked the Department to verify the reference
in rule 5(5) to paragraph 4(b)(ii). The Privy Council Office reply
in a memorandum printed in Appendix XI that the reference should
in fact be to paragraph 4(c)(ii). The Committee reports rule 5(5)
for defective drafting, acknowledged by the Department.
Rule 31(1) authorises service of documents "required
by any provision of these Rules" to be sent by registered
post or the recorded delivery service. Rule 31(2) authorises service
by ordinary post "in any other circumstances". The Committee
asked the Department to explain the circumstances in which rule
31(1) applies and the "other" circumstances in which
rule 31(2) applies. The Department reply that rule 31(1) deals
with notices or documents which are required to be served on any
person or body pursuant to any provision of the Rules, and rule
31(2) is intended to deal with the situation where there is no
duty on the General Medical Council to serve a document, but they
do so for another reason (e.g. under paragraph 12(2) of Schedule
I or by way of routine correspondence). In the Committee's view,
however, the purported distinction between rule 31(1) and 31(2)
rests on a misconception. The distinction between a document being
required or not required by a rule to be served is a distinction
based on whether a rule requires it or no rule does so and not
on "circumstances". Furthermore, paragraph 12(2) of
Schedule I is as much a rule requiring service as paragraph 3
of that Schedule. And no legislative provision for mode of service
is required at all for routine correspondence. Provisions as to
mode of service (ordinary post or specially secure methods) are
in truth provisions that depend on the relative importance of
the document identified for that kind of service. Alternatively
rule 31(1) could have simply incorporated ordinary post among
the modes of service to be available under the rules without attempting
to prescribe when one form of service must be adopted rather than
another. The Committee accordingly reports rule 31 as being defectively
REGULATIONS 1997 (S.I. 1997/1624)
13. The Committee draws the special attention of both Houses
to these Regulations on the grounds that there is doubt as to
their vires in two respects, they are defectively drafted
in two other respects and they require elucidation in three other
Regulation 4(1) requires the supplier of an appliance to
provide "such label in respect of the appliance as may be
necessary to enable the dealer to comply with his obligations
imposed pursuant to the Directives". Given that the requirements
as to the label seem to be set out in paragraph (2), the Committee
asked the Department what additional duty is imposed by the quoted
words. The Department of the Environment, Transport and the Regions
list, in a memorandum printed in Appendix XII, the "additional
elements" of the duty imposed by regulation 4(1). One element
is - in substance - that the labels must comply with paragraph
(2). It follows from this that the words quoted above (beginning
"such label") are equivalent to saying "such label
as complies with paragraph (2)". The quoted words in paragraph
(1) thus fail to express the intended meaning as well as being
misleadingly unnecessary. The Committee reports regulation 4(1)
for defective drafting.
Regulation 7(1) states that the supplier is to be "responsible
for the accuracy of the information given on a label or in an
information notice". The Committee asked the Department what
is the (legal) effect of this provision. In their first memorandum
the Department reply that the provision reproduces Article 3(3)
of Council Directive 92/75/EC (the Framework Directive), and is
intended to make clear that only the supplier is to be
responsible under the Regulations for the accuracy of the information.
The Committee considers that, as sole responsibility is to rest
with the supplier, regulation 7(1) should have stated this in
terms and the failure to do so constitutes defective drafting.
Regulation 7(2) deems labels and information notices "to
comply with [these] Regulations unless there is evidence to the
contrary". The Committee asked the Department what this adds
to the ordinary legal principle that proceedings for an offence
or other enforcement action can only be taken if there is some
evidence of a failure to comply. The Department agree in their
first memorandum that regulation 7(2) adds nothing to the principle
indicated by the Committee, but state that the paragraph repeats
what is said in Article 8(2) of the Framework Directive and that
it seemed helpful to include it in the Regulations. It is the
view of the Committee that it is usually more subversive and productive
of doubt than helpful to repeat propositions that are already
the law. In the case of these Regulations made under section 2(2)
of the European Communities Act 1972 the repetition in regulation
7(2) raises the question of vires. The relevant power in
section 2(2) is to implement the United Kingdom's Community obligations,
and since United Kingdom law already contains the principle which
regulation 7(2) duplicates it cannot be necessary to restate it
in these Regulations. The Committee reports regulation 7(2) on
the grounds that it appears to be ultra vires.
Regulation 10(1) refers to "similar obligations imposed
pursuant to the Directives". The Committee asked whether
these are the obligations contained in Article 3(2) of Council
Directive 92/75/EC and Article 2(3) and (5) of Commission Directive
96/60/EC. The Department confirm in their first memorandum that
the obligations referred to are indeed those specified by the
Committee. The Committee considers that this want of particularity
requires the elucidation provided by the Department's first memorandum
and reports accordingly.
The duty of a dealer under regulation 10(2) applies in the
case of retail sales where the appliance is not displayed, and
is to make an information notice available for inspection by potential
purchasers prior to sale. The Committee asked the Department what
Community obligation(s) are implemented by regulation 10(2). The
Department state in their second memorandum, also printed in Appendix
XII, that regulation 10(2) implements the ninth recital to the
Framework Directive and also Articles 1(1), 2(1) and 4(a). The
Committee agrees that Article 2 read in the light of the ninth
recital provides a reasonable basis for the requirement in regulation
10(2) in cases where there is a conventional retail sale (eg.
in a shop) and the appliance is not displayed. The Committee reports
regulation 10(2) for the elucidation provided.
Regulation 11 states that the dealer's duty in respect of
retail sales under regulation 9 (to attach a label to an appliance
when it is displayed) and regulation 10 (to make an information
notice available when there is no display) is not to apply
"when an appliance is offered for sale to end-users by mail
order, by catalogue or by other means which imply that the potential
purchaser cannot be expected to see the appliance displayed"
(so-called "distance sales", as distinct from retail
sales). The Committee asked the Department why regulation 11 disapplies
regulation 9, given that regulation 9 is applicable only in the
case of an actual display and that regulation 11 deals
only with cases where the offer for sale excludes sight
of the appliance, and to explain the effect of the disapplication.
The Department answer in their second memorandum that the provision
is included to deal with circumstances in which, "although
the context is a "distance selling" one, the appliance
might actually be physically presented to the consumer before
the sale took place". The Committee considers that the removal
in such a case of the dealer's duty under regulation 9 to attach
a label is inconsistent with the clear requirement in Article
4(a) of the Council Directive 92/75/EC that in all cases
where an appliance (specified in the implementing Directive) "is
displayed, dealers shall attach an appropriate label". To
this extent, therefore, regulation 11 results in a failure to
implement the underlying Community obligation as to the attachment
of labels. Accordingly, the Committee reports the positive disapplication
of regulation 9 effected by regulation 11 on the ground that it
appears to be ultra vires.
The requirements for "distance selling" in regulation
12 are limited to printed communications (with the stated exceptions),
whereas the circumstances in which regulation 11 limits the other
dealers' duties (under regulations 9 and 10) appear to include
offers for sale by means other than printed communications.
The Committee asked the Department whether the effect of this
is to exclude altogether from the regime (of regulations 9, 10
and 12) certain offers for sale which do not involve printed communications
(eg. telephone offers), and, if so, whether this conforms with
the Directives. The Department reply in their second memorandum
that the Committee is correct: "distance sales" under
which the offer for sale etc. is not made by printed communication
are not covered by the Regulations. This is because Article 5
of the Framework Directive, which applies to offers for sale etc.
"by mail order, by catalogue or by other means which imply
that the potential purchaser cannot be expected to see the appliance
displayed" has been implemented by Article 2(4) of Commission
Directive 96/60/EC only so far as concerns distance sales by means
of "printed communications, such as a mail order catalogue".
The Committee reports this aspect of regulations 11 and 12 as
requiring the elucidation provided by the Department in their
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 1 See
Sixth Report, Session 1997-98, paragraph 5. Back
3 See the
Fifth Report, Session 1996-97, paragraph 9. Back