Joint Committee on Statutory Instruments Thirtieth Report


THIRTIETH 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 Social Security, together with an extract from a letter by the Department dated 20 April, in connection with the Occupational and Personal Pension Schemes (Levy and Register) (Amendments) Regulations 1998 (S.I. 1998/600) are printed in Appendix I to this Report.

SHROPSHIRE'S COMMUNITY AND MENTAL HEALTH SERVICES NATIONAL HEALTH SERVICE TRUST (ESTABLISHMENT) ORDER 1998 (S.I. 1998/500)

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

  Article 1(2) provides that the "establishment date" of the new trust shall be 1st April 1998, and article 5(1) provides that the "operational date" shall be the same. Considering that articles 6 and 7 cannot have any effect unless the operational date follows the establishment date, the Committee asked the Department of Health whether article 5(1) ought to have provided for an operational date later than the establishment date of 1st April 1998. The Department admit in their memorandum (printed in Appendix II) that a mistake was made and explain that the operational date was correct but that the establishment date should have been earlier (some time in February). They state that they regret the error and undertake to communicate the point to their Parliamentary Branch. The Committee reports article 1(2) for defective drafting, acknowledged by the Department.

LOCAL GOVERNMENT PENSION SCHEME (SCOTLAND) REGULATIONS 1998 (S.I. 1998/366)

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

  Regulation 18(2)(a) disapplies regulation 18(1) (general qualification for benefits) in the case of ill-health grants under regulation 27(3). The Committee asked the Scottish Office Pensions Agency whether this ought to be a reference to regulation 26(3). The Department reply in the memorandum printed in Appendix III that the reference should be to regulation 26(3), and undertake to make a correction when the Regulations are first amended. The Committee reports regulation 18(2)(a) for defective drafting, acknowledged by the Department.

  Regulation 70(6) provides that the new administering authority "must apply and invest the sum received as mentioned in regulation 63". The Committee asked the Department to explain the reference to "the sum received as mentioned in regulation 63" and why, in framing the provision, no account was taken of the Committee's comments on the equivalent provision for England and Wales[2]. The Scottish Office Pensions Agency reiterate the argument used then by the Department of the Environment, Transport and the Regions: that the words "as mentioned in regulation in regulation 63" refer to "must apply and invest", not "the sum received". They accept, however, that the drafting "may not put the matter beyond all doubt" and propose to adopt the amendment suggested by the Committee to the equivalent English provision (the Committee suggested that the regulation should provide that the authority "must, in accordance with regulation [63], apply and invest the sum received by virtue of regulation [...]"). The Committee reports regulation 70(6) for defective drafting, acknowledged by the Department.

  Regulation 134(e) and (f) contain references to "the Environment Protection Act 1995". The Committee asked the Department whether these references ought to be to "the Environment Act 1995". The Department admit in their memorandum that this is the case, and state that they will correct the provisions when the Regulations are first amended. The Committee reports regulation 134(e) and (f) for defective drafting, acknowledged by the Department.

  The Committee said that the equivalent Regulations for England and Wales (S.I. 1997/1612) were for the most part drafted with admirable clarity, and might be used as a model for the drafting of other statutory instruments. The Committee wishes to repeat those positive comments for this statutory instrument.

LOCAL GOVERNMENT ACT 1988 (DEFINED ACTIVITIES) (EXEMPTION) (NO. 2) ORDER 1998 (S.I. 1998/580)

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

  Article 2(1) and the Schedule to this Order exempt from the competitive tendering requirements of Part 1 of the Local Government Act 1988 the activities of the local authorities specified in article 2(2) and the Schedule. As a consequence of this article 3 revokes enforcement directions given by the Secretary of State under section 14(2) and (3) of the Act. Article 3(1) revokes all such directions and is not limited to directions relating only to the specified activities exempt by this Order. In response to the Committee's question the Department of the Environment, Transport and the Regions accept in their memorandum (printed in Appendix IV) that the generalised revocation in article 3(1) operates on one direction which does not relate to specific activities and is accordingly too widely phrased. The Committee reports article 3(1) for defective drafting, acknowledged by the Department.

ROAD VEHICLES REGISTRATION FEE REGULATIONS 1998 (S.I. 1998/572)

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

  Regulation 2(1) (registration fee for a mechanically propelled vehicle) contains a reference to registration under section 22 of the Vehicle Excise and Registration Act 1994. The Committee asked the Department of the Environment, Transport and the Regions whether the reference ought to be to section 21 of that Act. In the memorandum printed in Appendix V the Department admit that the reference in regulation 2(1) ought to be to section 21, and undertake to make amending Regulations immediately. The Committee reports regulation 2(1) for defective drafting, acknowledged by the Department.

INCOME-RELATED BENEFITS (SUBSIDY TO AUTHORITIES) ORDER 1998 (S.I. 1998/562)

  7. The Committee draws the special attention of both Houses to this Order on the grounds that it is defectively drafted in two places.

  The definition of "interim subsidy" in article 2 includes references to articles 6(4) and 7(2). Given that there are no such articles in the Order, the Committee asked the Department of Social Security to explain the references. The Department reply in their memorandum, printed in Appendix VI, that the inclusion of the references was an error and state that they will remove them at the first opportunity. The Committee reports article 2 for defective drafting, acknowledged by the Department.

  Article 5 (keeping records and providing the Secretary of State with information a condition of a claim by an authority for subsidy) provides that the authority "shall -

  (a) provide such information...; and

  (b) keep and... produce records,

as the Secretary of State so requires, or as may be necessary, to satisfy him" that the claim is a proper one.

  In response to the Committee's request for an explanation of the quoted words, in particular its italicised grammatical structure, the Department explain that the purpose of the provision is to ensure that local authorities keep proper records of the benefit payments they make and are able to provide such information with their claim for subsidy. They accept, however, that the structure of the provision is "unsatisfactory", and undertake to revise it in due course. The Committee reports article 5 for defective drafting, acknowledged by the Department.


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   See the Committee's comments on regulation 71(6) of S.I. 1997/1612 in paragraph 3, 10th Report, Session 1997-98 (HL Paper 29; HC 33-x). Back


 
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