Joint Committee on Statutory Instruments Fourteenth Report


FOURTEENTH 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. An extract from a memorandum by the Department of Social Security in connection with the draft Child Support (Miscellaneous Amendments) Regulations 1997 is printed in Appendix I to this Report.

  3. A memorandum by the Department of the Environment, Transport and the Regions in connection with the Local Authorities (Goods and Services) (Public Bodies) (No. 2) Order 1997 (S.I. 1997/2095) is printed in Appendix II to this Report.

  4. A memorandum by the Department of Social Security in connection with the Social Security (Recovery of Benefits) (Appeals) Regulations 1997 (S.I. 1997/2237) is printed in Appendix III to this Report.

  5. A memorandum by the Home Office in connection with the Fire Precautions (Workplace) Regulations 1997 (S.I. 1997/1840) is printed in Appendix IV to this Report.

WIRELESS TELEGRAPHY (CONTROL OF INTERFERENCE FROM VIDEOSENDERS) ORDER 1997 (S.I. 1997/1842)

  6. The Committee draws the special attention of both Houses to this Order on the ground that it makes an unexpected use of powers.

  This Order relates to videosenders which, the Department of Trade and Industry explain in the first memorandum printed in Appendix V, operate within the television broadcast bands, are poorly designed and are liable to cause interference to neighbouring television sets and radio users. Article 3 provides that no person shall manufacture (paragraph a); sell, hire, offer or advertise for sale or hire (paragraph b); have in one's custody or control (paragraph c); or import (other than for the purpose of re-export from the United Kingdom) (paragraph d) a videosender. But a proviso provides that paragraph (d) is not to apply to videosenders which are imported from a Member State of the European Community or the European Economic Area. The Committee asked the Department whether, given that the proviso applies only to paragraph (d), the practical effect of the prohibitions in paragraphs (b) and (c) is to prevent lawful importation of videosenders from other Member States. The Committee also asked how the restrictions in paragraphs (b) and (c) are compatible with Article 30 of the EC Treaty (in so far as they are applicable to imports from other Member States). The Department reply in the second memorandum printed in Appendix V that these restrictions are compatible with Article 30 because Article 36 of the Treaty permits restrictions on imports from other Member States on grounds of public policy, public security and protection of the health and life of humans. They agree, however, that the proviso in article 3 does not achieve the Government's policy intention, and state that they will amend the Order at the earliest opportunity to prohibit all importation except for the sole purpose of re-export from the United Kingdom. Since, however, as drafted the proviso unjustifiably applies to importation but not also to selling and hiring and to having in one's custody or control, the Committee reports article 3 on the ground that it makes an unexpected use of an order-making power.

EXPLOSIVES (FIREWORKS) REGULATIONS (NORTHERN IRELAND) 1997 (S.R. 1997/401)

  7. The Committee draws the special attention of both Houses to these Regulations on the ground that there is a want of power as respects regulation 9.

  Regulation 9 provides that the fee for a licence is to be £30 "or such other sum as the Secretary of State shall provide". The Committee asked the Northern Ireland Office, given that the power in section 3 of the Explosives Act (Northern Ireland) 1970 is for regulations to prescribe the fees, what power authorises the amount to be fixed other than by the Regulations themselves. The Department accept in a memorandum printed in Appendix VI that under the 1970 Act the fees may only be changed by regulations, and state that they will reconsider the regulation when and if new powers are provided by the Fireworks Bill currently before Parliament, under which it is planned new Regulations will be made to replace the current Regulations. The Committee reports regulation 9 on the ground that it is ultra vires so far as it provides for the fixing of fees otherwise than by regulations.

FIREWORKS (SAFETY) REGULATIONS 1997 (S.I. 1997/2294)

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

  Regulation 4(2) prohibits the supply of, inter alia, (e) any banger other than a banger which is a category 2 firework; (f) any banger other than a banger whose supply is prohibited by subparagraph (e) above. The Committee asked for an explanation of the respective coverage of subparagraphs (e) and (f). The Department of Trade and Industry explain in a memorandum printed in Appendix VII that subparagraph (e) covers bangers classified as category 3 or category 4 under Part I of British Standard 7114, and that subparagraph (f) covers bangers classified as category 2 under that Standard. They add that they decided not to make this explicit in the Regulations because the prohibition on supply in regulation 4(2) might have caused confusion if contrasted directly with the implication in the Standard that category 2 and 3 fireworks are suitable for sale to the public. However this may be, the result is that these two subparagraphs contain duplicate prohibitions and, for that reason, the Committee reports regulation 4(2)(e) and (f) for defective drafting.

LOCAL GOVERNMENT ACT 1988 (DEFINED ACTIVITIES) (EXEMPTION) (BRENT LONDON BOROUGH COUNCIL AND HARROGATE BOROUGH COUNCIL) ORDER 1997 (S.I. 1997/2259)

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

  This Order came into force on 16th October 1997. Article 3 creates an exemption from the compulsory competitive tendering requirements in Part I of the Local Government Act 1988 for a period beginning 1st October 1997. The Committee asked the Department of the Environment, Transport and the Regions to justify the creation of this exemption for a period before the Order came into force. The Department admit in a memorandum printed in Appendix VIII that, as there is no power to create exemptions having retrospective effect, the Order is invalid to the extent that it relates to the period 1st October 1997 to 16th October 1997. The Committee reports article 3 on the ground that it has, as respects that period, a retrospective effect which is without statutory authority, acknowledged by the Department.

PROCUREMENT OF AIR NAVIGATION EQUIPMENT (TECHNICAL SPECIFICATIONS) REGULATIONS 1997 (S.I. 1997/2329)

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

  Regulation 2(2) provides that these Regulations (made under section 2(2) of the European Communities Act 1972) are to have effect for the purpose of making such provision as is necessary to comply with the Directive and are to be construed accordingly. The Committee asked what is the purpose of each of the two propositions and, in relation to the second, which expressions used in the Regulations are given a meaning in the Directive. The Department of the Environment, Transport and the Regions reply in a memorandum printed in Appendix IX that the first proposition is declaratory of the purpose of the Regulations and looks forward to the second proposition which is intended to ensure that any dispute as to the meaning of the Regulations is resolved by reference to the Directive, in particular other expressions defined in or having an ascertainable meaning in the Directive. However, they acknowledge that "the provision is unnecessary to the extent that it states the existing law" and that "an alternative means of incorporating the definitions used in the Directive would have been more appropriate". The Committee agrees with the Department's conclusion and thinks it important to state why they do. As to the first proposition, the Committee agrees that it is an unnecessary provision - indeed considers it to be subversive - because Member States are obliged by Directives and the jurisprudence of the European Court to make the provisions in their laws which are necessary to comply with the Directives and the Government are empowered by section 2(2) of the European Communities Act 1972 to make provision expressly for that purpose. As to the second proposition, the Committee considers that the appropriate way of incorporating expressions defined or used in a Directive is to state that the expression has the meaning given in the Directive or (where it is not defined but has an ascertainable meaning) that it has the same meaning as in the Directive. The Committee reports regulation 2(2) for defective drafting, acknowledged by the Department.

MERCHANT SHIPPING (CARRIAGE OF CARGOES) (AMENDMENT) REGULATIONS 1997 (S.I. 1997/2366)

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

  Regulation 3(a) defines "in bulk" as meaning "directly or without intermediate form of containment in a hold tank or cargo space forming a structural part of, or permanently attached to a ship". The Committee asked the Department of the Environment, Transport and the Regions to explain this definition, in particular (a) whether the definition refers to the goods (rather than to a space); (b) whether "in" (in "in bulk") is picked up by "in" (in "in a hold"); and (c) whether "directly or " should be "directly and ". The Department reply in a memorandum printed in Appendix X that the answer to all of the Committee's questions is yes. In particular, as regards the first two aspects of the drafting, they acknowledge that either the definition, or the phrase "in bulk" (where used in the other regulations), should have included the word "carried" or "when carried". The Department undertake to correct these defects at the next convenient opportunity. The Committee reports regulation 3(a) for defective drafting, acknowledged by the Department.

MERCHANT SHIPPING (DANGEROUS GOODS AND MARINE POLLUTANTS) REGULATIONS 1997 (S.I. 1997/2367)

  12. 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 9 regulates the onus of proof in proceedings for an offence "under regulation 5 or 6". The Committee asked the Department, given that regulation 5 creates no offence, whether this reference should be to regulation 6 only. In their memorandum (Appendix XI) the Department agree that the reference should be to regulation 6 only and undertake to correct the mistake at the next convenient opportunity: the Committee reports regulation 9 for defective drafting, acknowledged by the Department.

  Regulation 10(3) begins: "No packaged goods shall be offered for carriage or taken on board any ship unless the master or operator has been provided with a document including without prejudice to regulation 11(2). Such details include the following details". The Committee asked the Department to explain what this means. The Department reply that this passage should have been one sentence, requiring that the document contained the details specified in the rest of the paragraph. They add that they will also correct this mistake at the next convenient opportunity. The Committee reports regulation 10(3) for defective drafting, acknowledged by the Department.

  These Regulations are made under both section 2(2) of the European Communities Act 1972 and other "domestic" powers. The Committee asked the Department of the Environment, Transport and the Regions to explain why the Explanatory Note does not identify the provisions not made under the 1972 Act, as required by paragraph 2.101A of Statutory Instrument Practice. The Department state that all of the regulations except 10, 20 and 21 are made under "domestic" powers, and 10, 20 and 21 are made to an extent under "domestic" powers. They state that they regret that the information was not put in the Explanatory Note. The Committee reports the Explanatory Note to these Regulations for being incomplete, acknowledged by the Department.

AIRPORTS (GROUNDHANDLING) REGULATIONS 1997 (S.I. 1997/2389)

  13. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in four places and require elucidation in another place.

  The Committee asked the Department of the Environment, Transport and the Regions whether the reference in regulation 2(1), in the definition of "supplier of groundhandling services", to regulation 27(1)(b) should be to regulation 26(1)(b). The Department accept in a memorandum printed in Appendix XII that the reference should be to regulation 26(1)(b), note that regulation 26(1)(b) does not have any practical effect until 1 January 1999 and undertake to make a "timely" amendment to rectify the error.

  Regulation 2(3) provides that the Regulations are to have effect for the purpose of making such provision as is necessary to comply with the Directive (Council Directive 96/67/EC) and shall be construed accordingly. The Committee asked the Department to explain the purpose and effect of each proposition and, in relation to the second, to indicate what it adds to regulation 2(2) (expressions used in the Directive and in the Regulations). The Department give an explanation similar to that given in respect of the Procurement of Air Navigation Equipment (Technical Specifications) Regulations 1997 (reported on above). They conclude, however, in response to the Committee's questions, that regulation 2(3) is unnecessary. The Committee agrees with the Department's conclusion and draws the Department's attention to the observations the Committee makes on this matter in the report referred to above. The Committee reports regulation 2(3) for defective drafting, acknowledged by the Department.

  Regulation 12(6) requires the invitation to tender for supplying groundhandling services to specify (b) "the deadline for the submission of tenders (which shall be no earlier than 1 month from the date on which the invitation to tender was published beginning on that date)". The Committee asked whether the underlined words are necessary. The Department reply that the words are necessary because they make it clear that "from" includes the date of publication. The Committee accepts this explanation for the presence of the words in this particular context, where they do avoid a doubt that would otherwise arise. The Committee wishes to take this opportunity to observe that the clearest drafting of a running-of-time provision is to refer to the period "beginning with" the day which is to start time running. The Committee reports regulation 12(6) on the ground that it requires the elucidation provided.

  Regulation 24(2) provides that "a person who is guilty of an offence under regulation 22(3) shall be liable on summary conviction to a fine not exceeding the statutory maximum". The Committee asked the Department, bearing in mind the operation of section 46 of the Criminal Justice Act 1982 in relation to offences created under section 2(2) of the European Communities Act 1972, whether the maximum fine should be level 5 on the standard scale rather than the statutory maximum. The Department admit that this is correct, and undertake to make an amendment before the regulation comes into force. The Committee reports regulation 24(2) for defective drafting, acknowledged by the Department.

  The Committee asked the Department to explain the words in paragraph 1(a) of Schedule 1 "subject to paragraph 3 below". The Department acknowledge that the reference is incorrect and undertake to remove it at the next suitable opportunity. The Committee reports paragraph 1(a) of Schedule 1 for defective drafting, acknowledged by the Department.

  The Committee wishes to record their opinion that (despite the few errors listed above) these Regulations are a model of intelligent implementation of a Community obligation.

SOCIAL FUND COLD WEATHER PAYMENTS (GENERAL) AMENDMENT REGULATIONS 1997 (S.I. 1997/2311)

  14. The Committee draws the special attention of both Houses to these Regulations on the ground that they require the elucidation provided.

  These Regulations amend the Social Fund Cold Weather Payments (General) Regulations 1988 ("the principal Regulations"). Regulation 2 of the present Regulations amends the definition of "postcode district" in regulation 1(2) of the principal Regulations to take into account "any postcode district which is identified with an alpha suffix". The Committee asked the Department of Social Security in which document such an identification is made, and to give an example. The Department reply in a memorandum printed in Appendix XIII that such an identification is not made in any specific document. They go on to explain that the postcode district is shown by the number in the first part of the postcode, for example B35 or WV6. Due to the number of postal addresses in London, a London postal district may be identified with a further letter suffix; for example SW1A. The postcode districts identified in Schedule 1 to the principal Regulations did not reflect this fact, and regulation 2 is intended to ensure, by a less complicated and detailed means, that those postcode districts which have a letter suffix are brought within the scheme of the principal Regulations. The Committee reports regulation 2 as requiring the elucidation provided by the Department.

NATIONAL HEALTH SERVICE SUPERANNUATION SCHEME (SCOTLAND) AMENDMENT (NO. 2) REGULATIONS 1997 (S.I. 1997/1916)

  15. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted and that they require elucidation.

  Regulation 8(b) inserts into the National Health Service Superannuation Scheme (Scotland) Regulations 1995 the definition of "Doctors' Retainer Scheme" as having "the same meaning as given in section 39 of the Statement of Fees and Allowances Paid to General Medical Practitioners in Scotland. . .". The Committee asked the Scottish Office Pensions Agency what section 39 of the Statement says and why the text was not set out in full in the definition. The Department attached a copy of section 39 to their memorandum, printed in Appendix XIV. They explain that section 39 gives a description of the Scheme, rather than a concise definition, and that it would not therefore fit readily into the 1995 Regulations. The Committee reports regulation 8(b) for requiring elucidation in this respect. The Committee also notes that, given that section 39 provides a description rather than a definition, regulation 8(b) should not state that Doctors' Retainer Scheme has the same meaning "as given " in section 39, but rather should state that it means the Scheme described in that section. The Committee reports regulation 8(b) for defective drafting in this respect.


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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