Joint Committee on Statutory Instruments Seventeenth Report


SEVENTEENTH 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.

LOCAL GOVERNMENT ACT 1988 (COMPETITION) (WALES) (NO. 2) REGULATIONS 1997 (S.I. 1997/2649)

  2. The Committee draws the special attention of both Houses to these Regulations on the ground that they may be ultra vires.

  These Regulations are made under section 6(3) of the Local Government Act 1988. Part I of the Act requires certain work of local (and other) authorities to be put out to competition. Section 6 prohibits an authority from carrying out functional work unless specified procedures for competitive tendering are followed. The section becomes applicable to such work only if the work is of a description prescribed by regulations under subsection (3). By an amendment to the section (made by the Local Government Act 1992) such regulations may describe work by reference to a specified proportion of work of a particular description. In other words, the restriction on doing work without putting it out for competitive tender may be one which applies only to a proportion of work specified in regulations rather than all the work. The "specified proportion" of the functional work regulated by the Regulations being amended (which is subject to the restriction in section 6 of the 1988 Act) is defined in the substituted definitions in regulations 3(2)(c), 4(2)(c), 6(2)(c), 7(2)(c) and 8(2)(c) of these amending Regulations as an amount equal to the amount produced by the formulae set out in those definitions.

  The Committee asked the Welsh Office whether the formulae are capable in any circumstances of producing a negative amount and, if so, whether the effect is to disapply section 6 of the 1988 Act. In other words, given that the power is to make the restriction in that section applicable to a description of work or to a specified proportion only of such work, does this power include a power to make section 6 inapplicable altogether (by a formula capable of producing a specified proportion of work which is nil)? The Department's memorandum, printed in Appendix I, confirms that the formulae are capable of producing a negative or nil amount. In its Eleventh Report of Session 1997-98 the Committee reported an earlier Welsh instrument (S.I. 1997/1699) on the ground that it may be ultra vires as, in effect, the section 6 power was being used to disapply the prohibition on carrying out prescribed work without putting it out to competitive tender. Furthermore, since "proportion" means a portion, division or part of a whole (Oxford English Dictionary), that expression cannot (in the absence of any express indication to the contrary) be regarded as including a nil amount. The Committee noted that this view was supported by the fact that section 13(4) of the 1988 Act regards "proportion" as part of a greater whole and that at least one legislative provision (section 28A(4)of the Pensions Act 1993) expressly states that a prescribed proportion or percentage may be nil, where that is the intention of Parliament. The Committee, in its Sixteenth Report of Session 1996-97 also reported a similar Scottish instrument (S.I. 1997/197) on the ground that it may be ultra vires.

  In relation to the present Regulations, the Department indicate that it was not their intention to disapply section 6. They adhere to the view (expressed in their memorandum on S.I. 1997/1699) that the fact that the formulae are capable of producing a negative or nil amount does not necessarily mean that section 6 of the 1988 Act is disapplied. However, having regard to the Committee's conclusions in its Eleventh Report (which was published after the present instrument was laid), the Department state that they are "considering how it may be possible, under existing powers, appropriately to amend the formulae so as to meet the Committee's concerns". The Department do not put forward any new points in support of their view that a formula which is capable of producing a specified proportion of work which is nil does not have the effect of disapplying section 6 of the 1988 Act. Consequently, the Committee concludes that the rules in the formulae for determining the specified proportion of work appear to be ultra vires.

  

CONTROL OF PESTICIDES (AMENDMENT) REGULATIONS (NORTHERN IRELAND) 1997 (S.R. 1997/469)
PLANT PROTECTION PRODUCTS (BASIC CONDITIONS) REGULATIONS (NORTHERN IRELAND) 1997 (S.R. 1997/470)

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

  S.R. 1997/469 amends the Control of Pesticides Regulations (Northern Ireland) 1987 and S.R. 1997/470 supplements the Plant Protection Products Regulations (Northern Ireland) 1995. Both substitute a new Schedule 1, including a paragraph 1(1) which provides that an advertisement of a product covered by the Regulations "shall relate only to such conditions as are permitted by the approval given" in relation to that product. The Committee asked the Department of Agriculture for Northern Ireland to explain the purpose and effect of the provisions, with particular reference to the italicised words. The Department answer in a memorandum printed in Appendix II that the provisions are intended to circumscribe the way in which advertisements describe products by reference to the conditions subject to which the approval relating to that product has been given. For example, if a pesticide is only approved for controlling rats, an advertisement for that pesticide cannot claim that it is an effective treatment against moles. They accept, however, that the intention could be better expressed. It seems to the Committee that the intention of the Department is not given effect in the wording of paragraph 1(1). The intention appears in essence to be that an advertisement must contain only statements which are consistent with the conditions subject to which the consent or approval was given. The words of paragraph 1(1) are very different from such a proposition and accordingly the Committee reports both paragraphs for defective drafting.

  Paragraphs 7 and 8 of S.R. 1997/469 prohibit in specified circumstances the use of a pesticide approved for agricultural use, with certain exceptions. These exceptions are (a) that the person using the pesticide has obtained a certificate of competence; or (b) that the person is under the direction of someone who has; or (c) that the person uses it in accordance with an approval, if any, for one of the purposes set out in paragraph 7(1)(c). The Committee asked the Department to explain the circumstances in which no approval is required (in other words, for what reason are the underlined words included). The Committee asked a similar question in respect of paragraphs 7 and 8 of Schedule 3 in S.R. 1997/470. The Department reply that an approval may be given for one of the uses set out in paragraph 7(c), but that there need not be an approval for use if either of the conditions in paragraphs 7(a) or (b) or 8(a) or (b) are met. However, it is clear from the use of the word "or" between the subparagraphs that possession of an approval is required only if neither of the two other exceptions apply: the words "if any" in paragraph 7 are therefore superfluous and misleading. The Committee reports paragraphs 7 and 8 of Schedule 3 to S.R. 1997/469 for defective drafting. The Department gave the same explanation for paragraphs 7 and 8 of Schedule 3 to S.R. 1997/470 and the Committee also reports these provisions for defective drafting.

  

SHEEP ANNUAL PREMIUM (AMENDMENT) REGULATIONS 1997 (S.I. 1997/2500)

  4. The Committee draws the special attention of both Houses to these Regulations on the ground that there was an unjustifiable delay in laying the instrument before Parliament.

  The Regulations were made on 13th October 1997 but not laid before Parliament until 13th November 1997. The Committee asked the Ministry of Agriculture, Fisheries and Food to explain the reason for the delay. The Department reply in a memorandum printed in Appendix III that the delay was due to their desire to lay final, printed copies of the Regulations before Parliament. In the Committee's view this is not an acceptable reason and the Committee reports the Regulations on the ground that there was an unjustifiable delay in laying the instrument before Parliament.


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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