Joint Committee on Statutory Instruments Sixteenth Report


SIXTEENTH 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 Department of the Environment, Transport and the Regions in connection with the Local Authorities (Armorial Bearings) (No. 2) Order 1997 (S.I. 1997/2618) is printed in Appendix I to this Report.

  3. A memorandum by the Solicitor's Office on behalf of the Registrar General of Births, Deaths and Marriages for Scotland in connection with the Registration of Births, Still-births, Deaths and Marriages (Prescription of Forms) (Scotland) Regulations 1997 (S.I. 1997/2348) and the Marriage (Prescription of Forms) (Scotland) Regulations 1997 (S.I. 1997/2349) is printed in Appendix II to this Report.

  4. A memorandum by the Scottish Office in connection with the Surface Waters (Shellfish) (Classification) (Scotland) Regulations 1997 (S.I. 1997/2470) is printed in Appendix III to this Report.Registration of Marriages (Amendment) Regulations 1997 (S.I. 1997/2204)

REGISTRATION OF MARRIAGES (AMENDMENT) REGULATIONS (S.I. 1997/2204)

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

  These Regulations amend the Registration of Marriages Regulations 1986 and the Registration of Marriages (Welsh Language) Regulations 1986. They substitute new prescribed forms for notice of marriage without licence, notice of marriage with licence, certificate for marriage, certificate and licence for marriage and instructions for the solemnisation of a marriage in a registered building without the presence of a registrar, in both English and Welsh.

  It seemed to the Committee that in several places the Welsh language forms, contained in Schedule 2, failed to reflect accurately the English language forms, and so the Committee asked the Office for National Statistics several specific questions on the accuracy of the Welsh translation (printed in Appendix IV). For example, firstly, the English version of paragraph 5 of Form 8 (Schedule 2) states that "it is essential to the validity of the marriage" that each of the parties makes a declaration in one of the following forms "(c) by replying `I am' to the question put to them successively `Are you [name] free lawfully to marry [name].'" A translation of the words "put to them successively" is not included in the Welsh version of the form. Secondly, the English version of paragraph 8 of the same form refers to a "certified copy" of an entry in the marriage register books, whereas the Welsh version refers only to a "copy". The Department's memorandum, also printed in Appendix IV, referred back to previous regulations to explain all except one of the discrepancies outlined in the Committee's memorandum, and did little to justify them. Because the Department had failed to justify the apparent discrepancies, and considering that the Welsh and English versions of the forms now have equal legal effect, the Committee decided to call the Department to give oral evidence on the Regulations. The transcript is printed in Appendix IV. At the meeting, the Department conceded that there were discrepancies between the Welsh and the English language versions of the Regulations (Question 6), in particular in relation to the two paragraphs described above (Questions 16 and 24 respectively), and they admitted that some of these discrepancies might cast doubt on the validity of a marriage (Question 18). The Department stated that they hoped to correct the errors in translation "during the next year" (Question 28) and to look generally at the correctness of the Welsh language versions of these forms (Question 26). The Committee concludes that, as the English and Welsh language versions of the Regulations do not correspond in the respects mentioned above, the Regulations are in these respects defectively drafted, which is accepted by the Department.

CARRIAGE OF EXPLOSIVES BY ROAD REGULATIONS (NORTHERN IRELAND) 1997 (S.R. 1997/474)

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

  These Regulations impose requirements and prohibitions with regard to the carriage of explosives by road. Regulation 3(3)(a) disapplies certain regulations in relation to vehicles exempt from excise duty under section 7(1) of the Vehicle Excise and Registration Act 1994. The Committee asked the Northern Ireland Office whether the reference should be to section 5(1) of that Act. In their memorandum, printed in Appendix V, the Department admit that regulation 3(3)(a) should refer to section 5(1) of the 1994 Act. The Committee reports regulation 3(3)(a) for defective drafting, acknowledged by the Department.

  Regulation 11(1) states that the Secretary of State "shall approve the document entitled `Approved Requirements for the Construction of Vehicles intended for the Carriage of Explosives by Road', which is published by the Health and Safety Commission. It shall contain [certain requirements and explanatory notes]". The Committee asked the Department to explain whether the document referred to existed when the Regulations came into force; whether the opening words are meant to express the Secretary of State's approval of the document; and to explain the purpose and effect of the words "it shall contain". The Department respond that the document did exist when the Regulations came into force and that the opening words are, as the Committee suggest, meant to express the Secretary of State's approval of the document. They accept that the words "it shall contain" conflict with the words "shall approve the document" elsewhere in the provision. The Committee considers that as currently drafted the provision fails to express the intention of the Department, which would have been better expressed by a provision such as "the Secretary of State approves the document [title etc.], which contains [certain requirements and explanatory notes]".

  Paragraph 6(a) of Schedule 9 amends Schedule 2 to the Classification and Labelling of Explosives Regulations (Northern Ireland) 1991. It includes the words "Some articles, such as detonators for blasting, detonator assemblies for blasting and primers, cap-type". The Committee asked the Department what articles are comprised by the words "some articles". The Department reply that "some articles" relates to all articles classified in Compatibility Group B which do not contain primary explosives, and that the list in the paragraph gives "examples of what might fall into Compatibility Group B". The Committee considers that the provision itself should have specified the articles it covered. The Committee wishes to emphasise that it is contrary to the nature of a legislative instrument that it should be drafted merely suggestively, as by prescribing examples. The Committee reports paragraph 6(a) of Schedule 9 for defective drafting.

CARRIAGE OF EXPLOSIVES BY ROAD (DRIVER TRAINING) REGULATIONS (NORTHERN IRELAND) 1997 (S.R. 1997/475)

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

  In regulation 1(1), the definition of "the Council Directive" includes a provision that "any reference in these Regulations to anything done under the Directive shall have effect notwithstanding any subsequent revocation of the Directive". The Committee asked the Northern Ireland Office to identify the regulations which refer to things done under the Directive. The Department reply in a memorandum printed in Appendix VI that the relevant regulations are 4(8) and 5(1). However, regulation 4(8) refers to a certificate issued under national provisions giving effect to specified Directives and regulation 5(1) refers to a certificate issued by the appropriate national authority of a Member State. Neither provision, therefore, refers to a thing done under the Directive, as distinct from national law. The Committee reports regulation 1(1) for defective drafting.

  Regulation 1(6) begins with a saving for the generality of "regulation 2(4)". The Committee asked the Department to confirm the reference. They reply that the reference should be to regulation 2(2). The Committee reports regulation 1(6) for defective drafting, acknowledged by the Department.

  Regulation 4(1) is made subject to "paragraphs (2) and (9) and regulation 5". The Committee asked the Department whether this reference is correct. The Department admit that the reference should be to paragraph (2) (of regulation 4) and regulation 5. The Committee reports regulation 4(1) for defective drafting, acknowledged by the Department.

  Regulation 4(2) requires a vocational training certificate to be appropriate to the carriage of explosives in packages "in the case of the carriage of explosives referred to in regulation 2(1)". The Committee asked the Department to explain, given that regulation 2(1) defines the scope of application of the Regulations, the purpose and effect of the quoted words. The Department accept in their memorandum that the words are superfluous. The Committee wishes to point out that the words are not only superfluous but subversive of the general proposition in regulation 2(1) and reports regulation 4(2) for defective drafting, acknowledged by the Department.

  Regulation 4(5) and Schedule 3 requires training to cover "at least [the] subjects specified in Schedule 3". The Committee asked the Department to explain what coverage is meant by "etc." in sub-paragraph (d) of that Schedule. The Department state that the wording is taken from Council Directive 94/55/EC. The Committee restates that it does not consider that copying-out from Directives excuses Departments from a duty to be specific in making legislation, and so reports Schedule 3 for defective drafting.

  In relation to existing training certificates, regulation 5(1) provides an alternative means of compliance with regulation 4(1). The Committee asked the Department to explain the purpose and effect of the provision, given that compliance by this means ceased not later than 1 July 1997 (sub-paragraphs (a) and (b)) and the Regulations do not come into force until 1 December 1997. The Department reply that compliance by this mechanism should cease by 1 December 1997, and not 1 July 1997. The Committee reports regulation 5(1) for defective drafting in respect of the mistake over the date.

  The Department state in their memorandum that they will bring forward new regulations to address the points made by the Committee with reference to regulation 1(6), regulation 4(2) and regulation 5(1).

FOOD INDUSTRY DEVELOPMENT SCHEME 1997 (S.I. 1997/2673)

  8. The Committee draws the special attention of both Houses to this Scheme on the grounds that it requires elucidation in four respects.

  The Scheme enables the appropriate Minister to pay to any person satisfying certain conditions a grant of 50% of the eligible expenditure which has been incurred by that person in carrying out a proposal related to the development of the food industries in the United Kingdom. Paragraph 5(1) authorises applications for a grant to be made by associations or partnerships, but then states that the Minister may indicate that he will also accept applications from individuals or bodies corporate. The Committee asked the Ministry of Agriculture, Fisheries and Food to explain by what means the Minister will publicise any such indication. The Department reply in the memorandum printed in Appendix VII that any decision to make such an indication will be communicated by scheme literature and perhaps by seminars and meetings with trade associations. They add that they did not think it necessary to include an express requirement for the decision to be publicised as appropriate practices for the promotion of business support are well established. In the circumstances, the Committee accepts that communication with the industry by these means is sufficient publication of the Minister's decisions on the matter and accordingly reports paragraph 5(1) for the elucidation provided by the Department.

  In Schedule 1, paragraph 4 specifies as one of the considerations to which the appropriate Minister will have regard "the quality of the application and of any plan for the application of its objectives and for the dissemination of key information to the relevant parts of the food industry". The Committee asked the Department to explain the considerations intended to be covered by this paragraph, in particular in relation to the two italicised words. The Department state in relation to the word "quality" that their policy intention was to attract a wide range of applications, and that this provision is intended to permit a broadly based assessment of the reasoning and justification presented within an application for grant. "Quality" is not therefore given any more precise definition. As regards the term "application", the Department explain that it is intended that consideration of any plan for the application of the objectives of a project, that is, for their application to the relevant parts of the industry, would permit the appropriate Minister to assess the value of the intended mechanism for enabling the benefits realised by the project to be directed to the sector of the food industry at which the project was aimed. The Committee reports paragraph 4 of Schedule 1 to the Scheme as requiring the elucidation provided by the Department's memorandum.

  Paragraph 6 of Schedule 1 specifies as a consideration for priority "any additional benefits that would accrue from . . . grant". The Committee asked the Department to explain the sort of benefits contemplated, and the persons to be benefited. The Department explain that the benefits envisaged are those which are additional to the benefits specified in paragraph 1 of Schedule 1. The planned scheme literature will identify these as customer satisfaction, scope for increased employment and environmental considerations. Each of these involves an incidental benefit to classes of persons not directly involved in the industry, but, given that any proposal could have an impact on them, the Department consider that these benefits were within the range of factors which could be considered relevant. The Committee reports paragraph 6 of Schedule 1 as requiring the elucidation provided by the Department's memorandum.

  Paragraph 2 of Schedule 2 provides that "National Insurance costs of employers, pension costs and contributions to health care" are items eligible for payments of grant under the scheme. The Committee asked the Department to explain what social security contributions are meant to be indicated by the words "National Insurance costs", and what kinds of expenditure are meant to be covered by the words "contributions to health care". The Department explain that the social security contributions intended to be covered by the first phrase are those for which an employer is liable under Part I of the Social Security Contributions and Benefits Act 1992, and that the expenditure intended to be covered by the second phrase is financial contributions to caring for the health of those concerned, including payments of medical fees and health insurance. The Committee accepts that the intended coverage of "National Insurance costs" is ascertainable in the context of the 1992 legislation and the Department's explanation and is also satisfied as to the coverage of "contributions to health care" as explained by their memorandum. The Committee reports paragraph 2 of Schedule 2 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


 
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