Joint Committee on Statutory Instruments Twentieth Report


TWENTIETH REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE 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.

INSURANCE COMPANIES (ACCOUNTS AND STATEMENTS) (AMENDMENT) REGULATIONS 1997 (S.I. 1997/2911)

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

  These Regulations amend the Insurance Companies (Accounts and Statements) Regulations 1996. Regulation 10(11) inserts into Form 34 a new definition which contains a reference to the "amount stated under paragraph 8(a) above". The Committee asked HM Treasury to identify this amount and the provision under which it is stated. The Department reply in the memorandum printed in Appendix I that there is no amount stated under paragraph 8(a) and that the definition is unnecessary: they undertake to delete it at an early opportunity.

  Regulation 10(13) adds two paragraphs of instruction to Form 36, paragraph 1 of which contains a reference to "column 1 to this form". It was unclear to which column this referred. The Department explain that the relevant column is the one entitled "No. of units to £ sterling" (which is not column 1), and say that they will clarify the reference.

  The Committee reports regulations 10(11) and 10(13) for defective drafting, in both cases acknowledged by the Department.

TELECOMMUNICATIONS (INTERCONNECTION) REGULATIONS 1997 (S.I. 1997/2931)

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

  The Committee asked the Department to identify "the Directive" referred to in the definition of "European Public Operator" in regulation 2(2), there being two Directives referred to in the Regulations. The Department of Trade and Industry reply in their memorandum, printed in Appendix II, that the Directive is Council Directive 97/33 on Interconnection. They add that they will make this clear in amending regulations to be made in the near future. The Committee reports regulation 2(2) for defective drafting, acknowledged by the Department.

  Regulation 6(3) states that "the Director may intervene ... in order to make a direction". The Committee asked the Department why they did not use the legal form that he may make (or give) a direction. The Department reply that the wording in regulation 6(3) is used because it gives effect to the "precise obligation on the national regulatory authority which is set out in Article 9(3) of the Interconnection Directive" and add that they consider that the effect of the words is clear. Nevertheless, they say that they will amend the regulation so it provides that "the Director may make a direction". The Committee takes this opportunity to remind Departments that European directives must be properly transposed into domestic law, and that repeating the words of a Directive is no substitute for framing implementing regulations in terms which fit United Kingdom law - in this case that it is not "intervention" which is being authorised but a power to give directions. The Committee reports regulation 6(3) for defective drafting.

  Regulations 6(4), (6) and (7), 10(2) and 12(1) all impose requirements as to information by reference to regulation 8(3). Regulation 8(1) and (2) require certain information to be published by the Director; regulation 8(3) requires other information to be made available to interested parties on request. Of the provisions which refer to regulation 8(3) (as distinct from 8(1) and (2) or 8 as a whole), regulation 6(4) attracts the obligation to publish; regulation 6(6) and (7) attracts both the obligation to publish and the obligation to "notify the parties"; regulation 10(2) attracts both obligations; and regulation 12(1) attracts the obligation to publish. In response to the Committee's question whether certain of these provisions ought not to refer to the obligation (in regulation 8) to publish instead of or in addition to the obligation (in regulation 8(3)) to make the information available to interested parties, the Department reply that all the provisions in question are consistent with the Directive save for regulations 6(6), 6(7) and 10(2) which ought to refer to making the information available (to the parties) and will be amended accordingly. It appears to the Committee, however, that regulations 6(4) and 12(1) ought to attract the obligation (in regulation 8(3)) to make the information available to the parties, as should regulation 6(6) and (7); and that regulation 10(2) ought to attract both obligations i.e. those in regulations 8(1), (2) and (3). Both the references to regulation 8 and/or the introductory words referring to it call for amendment in the cases indicated above. The Committee reports these regulations for defective drafting.

  There is a mistaken reference in regulation 6(11). The reference to information provided to the Director under regulation 5(f) should be to information provided under regulation 5(e). The Department say that they will correct the mistake in the amending regulations. The Committee reports regulation 6(11) for defective drafting, acknowledged by the Department.

  Regulation 7(5) empowers the Director to specify conditions in agreements to ensure protection of data to the extent necessary to ensure compliance with the "relevant regulatory provisions on the protection of data". The Committee asked the Department to state to which regulatory provisions these words are intended to refer. The Department answer that the words are intended to refer to the Data Protection Act 1984 with respect to personal data; and to provisions on personal data and the confidentiality of commercial information in licences granted under section 7 of the Telecommunications Act 1984. They say that this will be made clear in the amending regulations. The Committee reports regulation 7(5) for defective drafting, acknowledged by the Department.

  Regulation 10(1) refers to the right of a public operator under the Telecommunications Act 1984 to "take advantage of a procedure for the expropriation ... of property". The Committee asked whether this is meant to be a reference to the recognised legal procedure for the acquisition of land compulsorily; and, if it is, to identify the powers of compulsory acquisition which are contemplated. The Department's reply indicates that the words are indeed intended to refer to powers of compulsory acquisition and identifies the relevant powers as those set out in sections 34 to 40 of and paragraphs 2 to 7 of Schedule 2 to the Telecommunications Act 1984. They add that this will be made clear in the amending regulations, which they say will be made available free of charge. The Committee reports regulation 10(1) for defective drafting, acknowledged by the Department.

CHARGES FOR INSPECTIONS AND CONTROLS REGULATIONS 1997 (S.I. 1997/2893)

  4. The Committee draws the special attention of both Houses to these Regulations on the ground that they require the elucidation provided by the Ministry of Agriculture, Fisheries and Food.

  These Regulations give effect to Article 2 of Directive 85/73/EEC, as amended. Regulation 3(2) requires the Minister to make the charges specified in the Schedule. Regulation 3(3) authorises the Minister to reduce certain charges to reflect the actual costs of inspections and controls. The Committee asked the Ministry of Agriculture, Fisheries and Food to identify in Directive 85/73/EEC (as amended) the source of the authority to vary an amount which is (save for egg products) fixed in its Annex B; and to explain why the authority so to reduce charges does not extend to those in respect of poultry, game, wild game or milk. The Department reply in their memorandum (printed in Appendix III) that the authority comes from Article 5(3) of the Directive, which authorises member States to charge an amount exceeding the levels of the Community fees (ie. those set out in Annex B to the Directive) provided that the total fees charged by each member State do not exceed the actual cost of inspection. The Department contend that the power to increase fees to make sure that they reflect actual costs must contain an implied power to decrease fees for the same reason. Article 5(3) does not apply in respect of fees relating to eggs, poultry, game, wild game and milk. In the case of poultry, game, wild game and milk, the fees in the Regulations are the sterling equivalent of the Community minima set out in the Directive, and Article 5(3) can only be used where the actual costs are higher than the Community minima. However, the Department consider that eggs can come within the scope of regulation 3(3). Article 5(3) could not have been applied in respect of eggs because it can only relate to those Community fees expressed in precise monetary terms and the fee for inspections of eggs could not be known when the Regulations came into force. Given that the fee concerned had to be incorporated into the Regulations before it could lawfully be charged in respect of future inspections, the fee in the Regulations had to be an estimated fee (it was estimated as the highest charge that could reasonably be foreseen). The Department consider that Article 5(3) must contain an implied power to adjust the fee in the case of eggs so that it reflects the actual cost of an inspection. The same is true for bovines, swine, solipeds, sheep, goats, salmon and trout. The Committee reports regulation 3(3) on the ground that it requires the elucidation provided.

RESTRICTIVE TRADE PRACTICES (NON-NOTIFIABLE AGREEMENTS) (SALE AND PURCHASE, SHARE SUBSCRIPTION AND FRANCHISE AGREEMENTS) ORDER 1997 (S.I. 1997/2945)

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

  Article 3 provides that an agreement is a non-notifiable agreement "(b) if it is for the sale and purchase of shares in a company or companies which are members of the same group". Sub-paragraph (iii) of paragraph (b) then provides that "the equity bought and sold" must be "equity in one company or companies which are members of one group". The Committee asked the Department of Trade and Industry what sub-paragraph (iii) adds to paragraph (b). The Department answer in their memorandum (Appendix IV) that the provision is intended to avoid making non-notifiable, for example, agreements which are reciprocal sale and purchase agreements or for shares in a number of unconnected companies. Sub-paragraph (iii) was included to make clear that the shares which are the subject of the agreement must be in the same "one" company or group. The Committee does not consider that sub-paragraph (iii) adds anything to article 3(b) given the case described in the opening words of (b), and reports article 3(b)(iii) for defective drafting.

COSMETIC PRODUCTS (SAFETY) (AMENDMENT) REGULATIONS 1997 (S.I. 1997/2914)

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

  Regulation 2(g) adds a new entry number 53 to the entries in Part I of Schedule 4 to the Cosmetics Products (Safety) Regulations 1996. In response to a question from the Committee, the Department of Trade and Industry admit, in the memorandum printed in Appendix V, that regulation 2(g) has assigned the details to the wrong columns in the Schedule. The memorandum sets out the correct new entry number 53. The Department say that they regret the error, and add that they will make the necessary correction when the 1996 Regulations are next amended. The Committee reports regulation 2(g) for defective drafting, acknowledged by the Department.

MOTOR VEHICLES (TYPE APPROVAL FOR GOODS VEHICLES) (GREAT BRITAIN) (AMENDMENT) (NO. 2) REGULATIONS 1997 (S.I. 1997/2936)

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

  The Department of the Environment, Transport and the Regions admit, in response to a question from the Committee, that the reference in regulation 2(2) to regulation 13A(2) of the Motor Vehicles (Type Approval for Goods Vehicles) (Great Britain) Regulations 1982 should be to regulation 18A(2) of the 1982 Regulations. The Department state that they are considering whether to correct the error. The Committee reports regulation 2(2) for defective drafting, which is acknowledged by the Department.


*1  
The Orders of Reference of the Ccommittee are set out in the First Report, Session 1997-98 (HL Paper 4; HC 33-i). Back




 
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