Joint Committee on Statutory Instruments Thirteenth Report


THIRTEENTH 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 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.

CATTLE IDENTIFICATION (ENFORCEMENT) 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) 1[2]that 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 defective drafting.

  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.

FISH HEALTH 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.

FOOD PROTECTION (EMERGENCY PROHIBITIONS) (PARALYTIC SHELLFISH POISONING) ORDER 1997 PARTIAL REVOCATION ORDER 1997 (S.I. 1997/1739)

FOOD PROTECTION (EMERGENCY PROHIBITIONS) (PARALYTIC SHELLFISH POISONING) ORDER 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.[3] 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.

CRIMINAL LAW (CONSOLIDATION) (SCOTLAND) ACT 1995 (DETENTION BY CUSTOMS OFFICERS) (SPECIFICATION OF TITLES) ORDER 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.

BOVINES AND BOVINE PRODUCTS (DESPATCH PROHIBITION AND PRODUCTION RESTRICTION) 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.

MERCHANT SHIPPING (PREVENTION OF POLLUTION: SUBSTANCES OTHER THAN OIL) (INTERVENTION) ORDER 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.

ENERGY EFFICIENCY (REFRIGERATORS AND FREEZERS) 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 another.

  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.

GENERAL MEDICAL COUNCIL (PROFESSIONAL PERFORMANCE) RULES ORDER OF COUNCIL 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 drafted.

ENERGY INFORMATION (COMBINED WASHER-DRIERS) 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 respects.

  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 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   1 See Sixth Report, Session 1997-98, paragraph 5. Back

3   See the Fifth Report, Session 1996-97, paragraph 9. Back


 
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