Joint Committee on Statutory Instruments Twenty-First Report


TWENTY-FIRST REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE STATUTORY INSTRUMENTS, ETC.[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 Trade and Industry in connection with the Wireless Telegraphy Apparatus Approval and Examination Fees Order 1997 (S.I. 1997/3050) and the Electromagnetic Compatibility (Wireless Telegraphy Apparatus) Certification and Examination Fees Regulations 1997 (S.I. 1997/3051) is printed in Appendix I to this Report.

SPECIFIED RISK MATERIAL ORDER 1997 (S.I. 1997/2964)

SPECIFIED RISK MATERIAL REGULATIONS 1997 (S.I. 1997/2965)

SPECIFIED RISK MATERIAL (AMENDMENT) REGULATIONS 1997 (S.I. 1997/3062)

  3. The Committee draws the special attention of both Houses to these instruments on the grounds that they make an unusual and unexpected use of powers and that the Order is defectively drafted.

  The Order regarding specified risk material (SRM) is made under the Animal Health Act 1981. The principal SRM Regulations (S.I. 1997/3062) are made under the Food Safety Act 1990. Both the Order and the Regulations impose obligations covering different aspects of the regulation of certain parts of bovine animals and of sheep and goats. The words "specified risk material" are defined as meaning the same in both except for an extension in the Regulations to "on-farm disposal" of sheep dying there. However, the Order and the Regulations both contain provisions (articles 11 and 12 and regulations 27 and 28) which impose on the same persons the same obligations as regards transporting and storing SRM. The penalties for breach of these same obligations are more severe under the Regulations than under the Order: the maximum summary fines are the same, but the Regulations allow for trial on indictment with an unlimited fine and up to two years imprisonment. The Committee asked the Ministry of Agriculture, Fisheries and Food why the same obligations are imposed by the Order and the Regulations, and in what respects the penalties differ. In their memorandum (Appendix II), the Department note that SRM has a wider meaning in the Regulations than it does in the Order, but acknowledge the existence of overlapping obligations in respect of the Order and the Regulations. They explain that "only by putting substantially the same provisions in both sets of legislation could it readily be ensured that all those dealing with SRM were aware of all the obligations relevant to them". They state that, under the Regulations (but not under the Order), a contravention can also be punished on indictment with a fine or up to two years imprisonment, but go on to say that the likelihood is that contravention of the provisions in the Regulations relating to storage and transport would be dealt with summarily and would, therefore, be subject to the same maximum fines as under the Order.

  The Committee considers that the duplication of the same transport and storage obligations in two instruments is an unusual exercise of each of the powers in question. The judicial presumption against Parliament creating duplicated obligations with criminal sanctions is evidenced from the provisions of the Interpretation Acts of 1889 and 1978 to the effect that Acts (and since 1978 subordinate legislation) are to be interpreted as not making a person liable under two or more laws. The Department's argument that the duplication is necessary to ensure that all those affected are aware of their obligations is unconvincing as a special case justification since the question only arises in relation to those transporting and storing such material. It does not matter that, as the Department state in their memorandum, importers would only concern themselves with the Order and slaughterers would only concern themselves with the Regulations. Furthermore, the Committee considers that the duplication of obligations in two instruments, breach of which attracts more severe penalties in one instrument than it does in the other, is also an unusual exercise of each power. In other words, it is an unusual exercise of the Animal Health Act powers to include obligations which, when breached, carry less severe penalties than would a breach of the same obligations in the instrument made under the Food Safety Act; and it is an unusual exercise of the Food Safety Act powers to include obligations which carry a more severe penalty when breached than would a breach of the same obligations in the instrument made under the Animal Health Act. The Committee therefore reports articles 11 and 12 of the Order and regulations 27 and 28 of the Regulations for making an unusual and unexpected use of powers.

  Article 10(2) of the Order requires the Minister to approve premises for processing material if he is satisfied that (a) the operator has in place a suitable tracing system; and "(b) does not pose a risk to human or animal health". The Committee asked the Department to identify the subject of "does not pose a risk". They reply that the subject of the words is intended to be the manufacturing process undertaken at the premises and apologise for the accidental omission of the relevant words. The Department say that, if the provision is not superseded, it will be corrected in March or April of this year. The Committee reports article 10(2)(b) of the Order for defective drafting, acknowledged by the Department.

PRODUCTS OF ANIMAL ORIGIN (IMPORT AND EXPORT) (AMENDMENT) REGULATIONS 1997 (S.I. 1997/3023)

  4. The Committee draws the special attention of both Houses to these Regulations on the ground that they make an unusual use of powers.

  The Regulations are made under section 2(2) of the European Communities Act 1972, as were the principal Regulations of 1996 (S.I. 1996/3124) which this instrument amends. The principal Regulations implement Directives which lay down requirements relating to products of animal origin, in respect of both intra-Community trade and imports from third countries and include enforcement powers for veterinary checks. Regulation 6 of the principal Regulations confers on Ministry (Ministry of Agriculture, Fisheries and Food and Scottish Office) inspectors the power to enter business premises and powers (in paragraph (3)) of inspection of premises and equipment, taking samples, examining documents and checking staff procedures. Paragraph (3)(e) empowers a Ministry inspector to take with him a European Commission inspector. Regulation 4 of the current Regulations amends this regulation 6, adding representatives of the New Zealand authorities to paragraph (3)(e) so that a Ministry inspector may take with him a New Zealand inspector for the purposes of the New Zealand Equivalence Agreement. It also provides that the powers in regulation 6(3) of inspection, taking samples and examining documents shall apply to a New Zealand inspector as they do to a Ministry inspector. The provenance of these Regulations is a European Community treaty with New Zealand ("the New Zealand Equivalence Agreement") on sanitary measures applicable to trade in live animals and animal products. The Agreement was approved on behalf of the European Community by Council Decision 97/132/EC and is annexed to that Decision with its Annexes. Article 10 of that Decision (with Annex VI) provides for the carrying out of "audit and verification procedures", including on-the-spot checks. Article 10.4 provides that "the New Zealand Authorities shall [for New Zealand] carry out the audit and verification procedures" provided for by Article 10.1 and 2. The Council Decision does not, however, prescribe the manner in which member States are to facilitate the exercise of enforcement powers by New Zealand inspectors.

  The Committee therefore asked the Ministry of Agriculture, Fisheries and Food whether it is intended (by the regulation 4 amendments) that New Zealand inspectors may exercise the principal regulation 6(3) enforcement powers independently of a Ministry inspector and, if this is so, to identify the European Community provision which authorises or requires the conferring of such independent powers. The Department's memorandum, printed in Appendix III, confirms that it is intended to confer these enforcement powers directly on New Zealand inspectors so that they may act independently of Ministry inspectors. They point to Article 10 (and Annex VI) of the Council Decision as authorising this conferment of enforcement powers. In particular, they consider "that when carrying out on-site verification, a New Zealand inspector needs the power to take action of the kinds specified in regulation 6(3) - independently of any UK official who may be accompanying him or her". The Council Decision does envisage that New Zealand inspectors are to carry out (in a member State) audit and verification procedures, including on-the-spot checks. However, the Decision does not say that New Zealand inspectors are to have powers of their own to be exercised independently of the member State's own inspectors. The principal Regulations only provide that inspectors of the European Commission may accompany a Ministry inspector. Given the terms of the Council Decision, section 2(2) of the European Communities Act 1972 may be used to confer independent enforcement powers on New Zealand inspectors. However, if one starts from the fundamental proposition that executive authority in a State belongs to the State's Government, that is, the Ministers (and their departments and local authorities) collectively, then it seems surprising to find powers conferred on the Executive of a foreign State (as distinct from an organ of the European Community) which are exercisable within the first State's territory. There is the additional consideration that a given State's own inspectors will have been selected because of their recognised qualifications and knowledge of that State's administrative procedures and conventions. The Committee therefore reports regulation 4 of the current Regulations as making an unusual use of powers.

MERCHANT SHIPPING (ISM CODE) (RO -RO PASSENGER FERRIES) REGULATIONS 1997 (S.I. 1997/3022)

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

  Regulation 5(1) provides for the suspension or cancellation of a document of compliance or safety management certificate on the grounds specified in subparagraphs (a) and (b). However, the Regulations do not require the notice to specify the ground on which the certificate was suspended or cancelled, and neither do they make provision permitting the holder to make representations prior to the decision to suspend or cancel the document. The Committee asked the Department of the Environment, Transport and the Regions whether it is intended that in practice these things will be done; and, if so, why no express provision is made in the Regulations. The Department reply in their memorandum (Appendix IV) that, in practice, they are and will be done unless there are compelling safety reasons to the contrary. They accept that provision should be made in the Regulations. The Committee reports regulation 5 for defective drafting, acknowledged by the Department.

  The Department add that they regret the omission, particularly given the Committee's comments on the Merchant Shipping (Carriage of Cargoes) Regulations 1996 (S.I. 1997/19)[2], and state that they "will endeavour to ensure that the provisions will be included in future cases". They do not, however, indicate that they will amend these Regulations. The Committee recommends that the Department, having acknowledged that the provision is defective, should do so.

MERCHANT SHIPPING (PORT WASTE RECEPTION FACILITIES) REGULATIONS 1997 (S.I. 1997/3018)

  6. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are of dubious vires in one place and they are defectively drafted in two other places.

  The Regulations are made under new powers inserted into the Merchant Shipping Act 1995 by section 5 of the Merchant Shipping and Maritime Security Act 1997. New section 130A empowers the Secretary of State to make provision relating to waste reception facilities at harbours in the United Kingdom. Section 130B(1) provides that a regulation may require a harbour authority "(a) in such circumstances as may be prescribed [by regulations], to prepare a plan with respect to the provision and use of waste reception facilities at the harbour; and (b) to submit the plan to the Secretary of State for approval". These Regulations make provision for this purpose in regulation 8. Regulation 8 requires "every harbour authority [for a United Kingdom harbour to] prepare a waste management plan with respect to the provision and use of facilities for the reception of prescribed wastes from ships using the harbour". It was unclear to the Committee whether regulation 8 is within the powers conferred by requiring the submission of a plan without also prescribing the circumstances in which the requirement is to be operative. In response to questions put by the Committee the Department of the Environment, Transport and the Regions state (in a memorandum printed in Appendix V) that the obligation to prepare a waste management plan arises in "all circumstances" because regulation 8 requires all harbour authorities to prepare plans for harbours in United Kingdom.

  The Committee does not agree that the use of the power in section 130B(1) to require the preparation of a plan in such circumstances as may be prescribed is properly satisfied by the prescription in regulation 8 that plans must be prepared by all harbour authorities. In the Committee's view, this is not prescribing circumstances at all. It is not difficult to envisage true "circumstances", for example the size of the harbour, the facilities it already has or the type of vessels using it. Moreover, if those framing the power had intended that the requirement to prepare a plan could be imposed on harbour authorities in all circumstances or such (only) as the regulations specified, the power could easily have been so worded. The Committee therefore reports regulation 8 for being of dubious vires.

  Regulation 8 provides that, in preparing a waste management plan, a harbour authority shall consult such persons as the Secretary of State may prescribe. Regulation 9 provides that the Secretary of State may require a terminal operator to prepare a waste management plan, but does not provide that the operator shall consult any persons prescribed by the Secretary of State. The Committee asked the Department whether it is intended that the Secretary of State should have no power to direct that, in preparing a waste management plan, a terminal operator must consult such persons as he may direct. The Department say that they consider that an express provision requiring the terminal operator to consult such persons as the Secretary of State may direct is unnecessary because the Secretary of State has the power to reject a plan submitted by a terminal operator, and that one of the grounds on which he may reject a plan is that the operator has not carried out adequate consultation. The Committee does not consider that this is a satisfactory answer: if it is intended that the Secretary of State may, by rejection of a plan, require the terminal operator then to consult with the relevant persons, the Regulations should state in terms that the Secretary of State may direct that consultation on the plan should take place, as they do in regulation 8 in relation to harbour authorities. The Committee reports regulation 9 for defective drafting.

  Regulation 15 refers to the Merchant Shipping (Fees) Regulations 1997 when it should refer to them as being the 1996 Regulations. The Committee reports regulation 15 for defective drafting, acknowledged by the Department in their memorandum.

ROAD VEHICLES (STATUTORY OFF-ROAD NOTIFICATION) REGULATIONS 1997 (S.I. 1997/3025)

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

  Regulation 5(1) provides that "where ... the holder of a vehicle licence surrenders it under section 10(2) of the [Vehicle Excise and Registration Act 1994], he shall make the required declaration and furnish the required particulars in relation to the vehicle for which the licence was taken out". The Committee asked the Department of the Environment, Transport and the Regions whether it is intended that the holder should make the required declaration and furnish the required particulars when he surrenders the licence. In the memorandum printed in Appendix VI the Department confirm that this is the intention. However the Committee does not consider that, as currently drafted, the provision achieves this intention: regulation 5(1) begins "where", not "when", and so it does not specify the time at which the declaration must be made and the particulars furnished. The Committee reports regulation 5(1) for defective drafting.

MERCHANT SHIPPING AND FISHING VESSELS (HEALTH AND SAFETY AT WORK) REGULATIONS 1997 (S.I. 1997/2962)

  8. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in three respects and require the elucidation provided in two others.

  Regulation 4(1)(b) and (2) use the term "natural or legal person", and not the proper legal term "person"[3]. The Department of the Environment, Transport and the Regions state in their memorandum (Appendix VII) that they regret the error and will correct it if a convenient opportunity arises. The Committee reports regulation 4(1)(b) and (2) for defective drafting, acknowledged by the Department.

  Regulation 5(1) requires the employer to ensure the health and safety of workers and other persons. The Committee asked the Department to explain the scope of the application of this duty in relation to workers and other persons, in particular whether it applies to workers only on board ship or in other circumstances; and in what circumstances it applies to other persons. The Department explain that regulation 3 provides that the duty broadly applies to workers' activities on board a UK ship, and that the obligation in regulation 5(1) is to ensure that those work activities do not endanger the workers, or any other persons who are in the vicinity of the work, such as a passenger on a cruise liner while relocation or maintenance is being carried out. The Committee reports regulation 5(1) as requiring the elucidation provided by the Department.

  Paragraph (1) of regulation 5 provides that the employer's duty to ensure the health and safety of workers and other persons is to be met by the application of specified principles. Paragraph (2) provides that, without prejudice to the generality of the duties under paragraph (1), the matters to which those duties extend shall include certain specified matters. The Department say in response to a question from the Committee that paragraph (2) should read duty in each place where duties occurs. The Committee reports regulation 5(2) for defective drafting, acknowledged by the Department.

  Regulation 8(1) provides that the health risk assessment required by regulation 7(1) shall include an assessment for new or expectant mothers "where (a) the workers include women with potential for childbearing; and (b) the work is of a kind which could involve risk, by reason of her condition, to the health and safety of a new or expectant mother, or to that of her baby". The Committee asked the Department to explain, given that (b) specifies that the worker is a new or expectant mother, the purpose and effect of the circumstance in (a) that the workers include women with a potential for child-bearing. The Department explain that it is intended that the assessment should be carried out where there could be new or expectant mothers working: a mother might not wish to notify her employer that she was pregnant in the early stages. The Committee reports regulation 8(1) as requiring the elucidation provided by the Department.

  Regulation 21(2)(b) provides that no worker shall "disconnect, change or remove or otherwise interfere with any safety device provided by the employer or the Company". It was unclear to the Committee whether this regulation is intended to apply when such actions are authorised by the employer or the Company. The Department consider that the provision, and in particular the word "otherwise", means that the prohibition relates only to disconnection etc. which interferes with the proper working of the safety device. They continue that the prohibition may therefore apply when actions are authorised by the employer or the Company; for example, if they order a device's removal on grounds of economy. In the Committee's view the provision does not currently achieve the intention of the Department as stated in their memorandum: there are four kinds of prohibited act and if each of them had been meant to be restricted (supposing each could, in its nature, be restricted) to actions which interfere with the proper working of the device, the provision should have said so. The Committee reports regulation 21(2)(b) for defective drafting.

NATIONAL HEALTH SERVICE (PILOT SCHEMES: FINANCIAL ASSISTANCE FOR PREPARATORY WORK) AMENDMENT REGULATIONS 1997 (S.I. 1997/3021)

  9. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in two respects and require elucidation in another.

  These Regulations amend the National Health Service (Pilot Schemes: Financial Assistance for Preparatory Work) Regulations 1997. The reference in new regulation 5(1) (inserted by regulation 2(4)) to regulation 4(3)(d) should be to regulation 4(3)(c). The Committee reports new regulation 5(1) for defective drafting, acknowledged by the Department of Health in their memorandum (Appendix VIII).

  New regulation 5(1) provides that, notwithstanding that an applicant has satisfied the authority, the authority on making a payment of financial assistance must require all the costs in respect of which payment was made to have been incurred before the relevant date and for the purposes specified in the application for that payment. The Committee asked the Department to explain the need for regulation 5(1), given that regulation 4(3)(c) provides that payment of financial assistance cannot be made unless the applicant has satisfied the authority that (i) he has incurred costs which are not less than the amount of the payment of financial assistance, and (ii) those costs were incurred before the relevant date for the purposes specified in his application. The Committee asked a similar question in relation to the need for new regulation 7(1), given regulation 6(3)(d). The Department reply that the authority may have satisfied itself under regulations 4(3)(c) and 6(3)(d) that a payment should be made, and only become aware after they have made that payment that the costs in respect of which the payment was made were not in fact incurred before the relevant date, or for the purposes specified in the application. Regulations 5 and 7 therefore provide a mechanism for the authority to recover, in such circumstances, payments already made. The Committee reports new regulations 5(1) and 7(1) as requiring the elucidation provided by the Department.

  The references in paragraphs (5)(a) and (6)(b) of new regulation 4 to paragraph (3)(c) ought to be to paragraph (3)(b). The Committee reports new regulation 4 for defective drafting, acknowledged by the Department.

NON-AUTOMATIC WEIGHING INSTRUMENTS (EEC REQUIREMENTS) (AMENDMENT) REGULATIONS 1997 (S.I. 1997/3035)

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

  Regulation 2(o) introduces into the Non-automatic Weighing Instruments (EEC Requirements) Regulations 1995 (S.I. 1995/1907) a new regulation 26A. Paragraph (7) of this regulation makes a person who fails to end the non-conformity specified in the notice subject to "such enforcement action as may be appropriate". The Committee asked the Department of Trade and Industry to explain the purpose and effect of this provision. The Department's memorandum (Appendix IX) explains that new regulation 26A is intended to give a manufacturer or his authorised representative the opportunity to end an infringement before taking enforcement action. The Department give, as examples of enforcement action, the taking of proceedings for an offence and the suspension of the EC declaration of type conformity. The Committee reports regulation 26A as requiring the elucidation provided by the Department's memorandum.

  Paragraph (8) of new regulation 26A provides that references to "other provisions of these Regulations include references to corresponding provisions under the laws of a member State other than the United Kingdom". The Committee asked the Department to explain the purpose and effect of this provision. The Department explain that paragraph (8) enables an authorised person to warn of non-conformity in respect of provisions in place in the other member States, but the Department do not envisage that the paragraph could be used to enable an authorised person to take enforcement action in respect of the legislation of other member States. The Committee considers that, as currently drafted, paragraph (8) operates on references in regulation 26A to the Regulations in contexts which relate to other procedures and requirements than a warning and accordingly has a wider effect than that intended by the Department as stated in their memorandum, and therefore reports the provision for defective drafting.


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

2   Thirteenth Report, Session 1996-97 (HL Paper 48, HC 29-xiii), p. 7. Back

3   See the Committee's Sixth and Thirteenth Reports, Session 1997-98 (respectively HL Paper 14, HC 33-vi; and HL Paper 37, HC 33-xiii). Back


 
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