Joint Committee on Statutory Instruments Fifteenth Report




FIFTEENTH 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 the Home Office in connection with the Licensing (Fees) (Variation) Order 1997 (S.I. 1997/2501) 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 Statistical Returns (Carriage of Goods and Passengers by Sea) Regulations 1997 (S.I. 1997/2330) is printed in Appendix II to this Report.

PROTECTION OF WRECKS (DESIGNATION NO. 4) ORDER 1997 (S.I. 1997/2536)

  4. The Committee draws the special attention of both Houses to this Order on the ground of procedural default.

  This Order came into force on 24th October (that is to say (in law) immediately after midnight on 23rd/24th October) and was not laid before Parliament until later that day. The Committee asked the Department for Culture, Media and Sport whether they had notified the Lord Chancellor and the Speaker of the House of Commons that the instrument had come into force before being laid before Parliament, as required by the proviso to section 4(1) of the Statutory Instruments Act 1946. The Department reply in a memorandum printed in Appendix III that, following receipt of the Committee's question, they have now sent the required notification. They apologise for the delay and state that procedures have been put in place to guard against a recurrence of the error. The Committee reports the Order on the ground that there was an unjustifiable delay in notifying the Lord Chancellor and the Speaker of the House of Commons that it had come into effect before it was laid before Parliament.

HOUSING BENEFIT (RECOVERY OF OVERPAYMENTS) REGULATIONS 1997 (S.I.1997/2435)

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

  These Regulations implement provisions of the Social Security Administration (Fraud) Act 1997 in relation to the recovery of overpayments of housing benefit. Regulation 3(3)(a) requires the authority, in a case to which paragraph (2) applies, to notify the landlord and tenant that the overpayment that it has recovered or that it has determined to recover was one to which paragraph (2) applies. The Committee asked the Department of Social Security to explain, given that paragraph (2) applies only in a case where the amount has been recovered from the landlord, why the italicised words were included. In a memorandum printed in Appendix IV the Department accept that the present wording of paragraph (3)(a) "is at best ambiguous", and undertake to amend the paragraph at the earliest opportunity. The Committee reports regulation 3(3)(a) for defective drafting, acknowledged by the Department.

HOUSING BENEFIT (INFORMATION FROM LANDLORDS AND AGENTS) REGULATIONS 1997 (S.I. 1997/2436)

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

  These Regulations give local authorities the power to request certain information in relation to housing benefit. In regulation 5 (manner and supply of information) paragraph (1) provides that, subject to paragraph (2), the information shall be supplied within four weeks of the service of the notice on the supplier. Paragraph (2)(b) provides that, at the request of the supplier of the information and with the written agreement of the requirer, the relevant information may be supplied within eight weeks of the service of the notice on the supplier. The Committee asked the Department of Social Security whether the supplier can make his request for further time after the expiry of the four week limit mentioned in paragraph (1). The Department reply in a memorandum printed in Appendix V that they did not intend that suppliers should be able to seek this extension after the expiry of the initial four week period. They add that, if the supplier had not already sought and obtained the extension under paragraph (2)(b), the criminal offence set out in regulation 6 would be complete after the expiry of the initial four weeks. The Committee considers that, because clarity is crucial when breach of a provision attaches a criminal sanction, regulation 5(2) should make clear that the request for an extension of the period in which the information may be supplied must be made before the expiry of the initial four week period. The Committee reports regulation 5(2) for defective drafting.

SOCIAL FUND MATERNITY AND FUNERAL EXPENSES (GENERAL) AMENDMENT REGULATIONS 1997 (S.I. 1997/2538)

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

  Regulation 4(b) inserts a new regulation 4(4) into the Social Fund Maternity and Funeral Expenses (General) Regulations 1987. New regulation 4(4) provides that a further funeral payment may be made in respect of any funeral expenses arising from the death of a person in respect of which such a payment has already been made where (a) the decision pursuant to which the funeral payment was awarded has been reviewed; and (b) the amount of the award as revised on that review, together with the amount of the funeral payment already paid in respect of the death of that person, does not exceed the amount of any funeral payment which may be awarded pursuant to regulation 7A(2). The Committee asked the Department of Social Security to explain, in a case where the original amount awarded (£X) is increased on the review, to £X+200, whether the italicised words refer to £X+200 or to £200. In a memorandum printed in Appendix VI the Department state that the underlined words should refer to £200, and undertake to amend the Regulations at the earliest opportunity. The Committee reports new regulation 4(4) for defective drafting, acknowledged by the Department.

POLICE ACT 1997 (PROVISIONS IN RELATION TO THE NCIS SERVICE AUTHORITY) (NO. 2) ORDER 1997 (S.I. 1997/2391)

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

  Paragraph (3) of article 14 provides that references in that article to a paid office under the Authority do not include references to, or to the office of, the chairman of the NCIS Service Authority. The Committee asked the Home Office to explain the purpose and effect of article 14(3), given that paragraph 17 of Schedule 2 to the Police Act 1997 provides only for payments by way of reimbursement of expenses and allowances to the chairman. In the memorandum printed in Appendix VII the Department accept that the office of chairman of the authority is not a paid office, and that article 14(3) is unnecessary. They add that they will make the necessary amendment at the next convenient opportunity. The Committee reports the Order for defective drafting, acknowledged by the Department.

VEHICLE EXCISE DUTY (IMMOBILISATION, REMOVAL AND DISPOSAL OF VEHICLES) REGULATIONS 1997 (S.I. 1997/2439)

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

  These Regulations provide for the immobilisation and removal of unlicensed mechanically propelled vehicles found stationary on public roads. Regulation 4(1) and (2)(h) states that "These Regulations shall not apply in relation to [a] vehicle [which] is stationary at a time when, having been immobilised or removed under these Regulations, less than 24 hours have elapsed since it was released or, as the case may be, removed". The words thus purport to disapply all the Regulations in these circumstances. It was not clear to the Committee whether, in a case where a vehicle which is not immobilised is removed under regulation 9(1)(a) and (3), it is intended that the claimant should be precluded from taking possession of the vehicle under regulation 12 until 24 hours have elapsed since it was removed. The Department of the Environment, Transport and the Regions state in a memorandum printed in Appendix VIII that such a restriction was not intended. They contend that such an interpretation of the regulations would be "over-literal" and would "produce anomalous results". The Department conclude that they will nevertheless consider whether the Regulations should be clarified "so as to remove all scope for such arguments". It is the Committee's opinion that the effect (as distinct from the intention) of the words of regulation 4(1) and (2)(h) quoted above is that a claimant is precluded from taking possession under regulation 12 of a vehicle which has been removed until 24 hours have elapsed. The Committee reports regulation 4 for defective drafting.

PUBLIC BODIES (ADMISSION TO MEETINGS) (NATIONAL HEALTH SERVICE TRUSTS) ORDER 1997 (S.I. 1997/2763)

  10. The Committee draws the special attention of both Houses to this Order on the ground that its numbering is not in accordance with correct statutory instrument practice.

  This Order was made under section 2(3) of the Public Bodies (Admissions to Meetings) Act 1960 which provides that an instrument made under this power "shall be of no effect unless it is approved by resolution of each House of Parliament". The numbering of statutory instruments is regulated by section 2 of the Statutory Instruments Act 1946 and regulations made under section 8 of that Act. Section 8(1)(b) provides that regulations may make provision for postponing the numbering of an instrument which does not take effect until approved by Parliament. The intention clearly was to avoid the confusion which could result if an instrument were to be numbered and then never take effect. Regulation 3 of the Statutory Instruments Regulations 1947 provides that instruments are to be numbered in the order in which they are received by the King's printer of Acts of Parliament. There is a provision that where an instrument will not take effect unless confirmed or approved by Parliament "the instrument may be allocated and numbered as if it had been made and received on the date on which the responsible authority notifies the Queen's printer that the instrument has become operative or will become operative". The responsible Departments explain in a joint memorandum printed in Appendix IX that they regret that the instrument was numbered contrary to the correct practice in these cases and that they note for the future the practice to be followed. The premature numbering of this instrument cannot affect its validity. The publicity given to this case will remind departments of the correct practice. The Committee reports this instrument on the ground that its numbering is not in accordance with correct statutory instrument practice.




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




 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1998
Prepared 12 January 1998