Joint Committee on Statutory Instruments Thirty-First Report


THIRTY-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 HM Treasury in connection with the Industrial and Provident Societies (Credit Unions) (Amendment of Fees) Regulations 1998 (S.I. 1998/672) is printed in Appendix I to this Report.

  3. A memorandum by HM Treasury in connection with the Industrial and Provident Societies (Amendment of Fees) Regulations 1998 (S.I. 1998/676) is printed in Appendix II to this Report.

  4. A memorandum by HM Treasury in connection with the Friendly Societies (General Charge and Fees) Regulations 1998 (S.I. 1998/673) is printed in Appendix III to this Report.

  5. A memorandum by HM Treasury in connection with the Building Societies (General Charge and Fees) Regulations 1998 (S.I. 1998/675) is printed in Appendix IV to this Report.

  6. A memorandum by the Scottish Office Department of Health in connection with the Nursing Homes Registration (Scotland) Amendment Regulations 1998 (S.I. 1998/661) is printed in Appendix V to this Report.

SECURE TRAINING CENTRE RULES 1998 (S.I. 1998/472)

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

  Rule 2 defines "compulsory school age" by reference to section 580 of the Education Act 1996 (which contains an index of expressions defined in the Act). The Committee asked the Home Office whether the expression ought to be defined by reference to section 8 of that Act (which defines this expression). In the memorandum printed in Appendix VI the Department reply that the expression may properly be defined by reference to either section 580 or section 8. However, section 580 is not a definition section but merely an index (not law itself) and the expression should therefore have been defined by reference to section 8. The Committee therefore reports rule 2 for defective drafting.

  Rule 10(2) provides that, except as provided by statute or the Rules, a trainee shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State. The Committee asked the Department to identify the statutory provisions contemplated and to explain the need for an express saving for such provisions. The Committee asked corresponding questions on rule 42(1) and (2). The Department fail in their memorandum to state which statutes are contemplated in rules 10(1) and 42(1) and (2). The Committee considers that the general exception for statutory provisions is otiose, and subversive of principle because secondary legislation is always subordinate to primary legislation. It is also misleading in suggesting that without such an express exception the position might be otherwise. The Committee reports rules 10(1) and 42(1) and (2) for defective drafting.

  Rule 11(1)(b) entitles a trainee to receive a visit once a week. Rule 11(2) gives him an additional entitlement to "receive visits". The Committee asked the Department to explain the purpose of paragraph (1)(b), given the quoted words of paragraph (2). The Department explain that the entitlement in rule 11(1)(b) is an absolute entitlement, and that the entitlement to receive further visits under paragraph (2) is subject to the provisions of the Rules and therefore discretionary. The Committee reports rule 11 as requiring the elucidation provided by the Department.

  Rule 11(2) entitles a trainee "to receive any number of letters". Rule 14(2) and (3) provides that correspondence to which rule 14 applies may be opened "if the governor has reasonable cause to believe that it contains an illicit enclosure" and that "correspondence to which this rules applies may be opened, read and stopped". Rule 14(6) defines an "illicit enclosure" as including any correspondence from a person who is not the trainee's legal adviser or a court. The Committee asked the Department to explain the nature of the right conferred by rule 11(2) in the light of rule 14. The Department explain that rule 14 applies only to correspondence with legal advisers and courts, for which special provision is made because it is excepted from the general rule 10(3) that the governor may read or examine every letter or communication to or from a trainee. If correspondence which is not from a legal adviser or a court is found as an enclosure to correspondence with a legal adviser or a court, the governor may by virtue of rule 14(2) read it and then, subject to the provisions of the Rules, pass it on to the trainee — who is entitled by virtue of rule 11(2) to receive it. The Committee reports rule 11(2) as requiring the elucidation provided.

  Rule 39(7) prohibits an officer, without the knowledge of the governor, from communicating with any person who he knows to be a former trainee or a relative or friend of a trainee or a former trainee. The Committee asked the Department to explain the purpose of this rule and whether the provision is intended to prohibit, for example, a casual conversation with a friend of a former trainee which does not mention the former trainee or any matter relating to the centre. The Home Office explain in their memorandum (Appendix VI) and in the oral evidence they gave on 28 April (the transcript is printed in Appendix VIII) that the purpose of the rule is to protect young people by preventing them from forming inappropriate relationships with officers (Question 19); to protect officers (Question 19); and to protect the security of the centre (memorandum final paragraph). They say that the rule is not intended to prohibit a casual conversation which is not initiated by the officer, but that if such an encounter occurred the officer would be required to report it to the governor of the centre (memorandum final paragraph). The Department go on to explain that these details will be made known to officers through guidance issued by the contractor to his staff (Question 25). The Committee reports rule 39(7) on the ground that it requires the elucidation provided by the Department.

SECURE TRAINING CENTRES (ESCORTS) RULES 1998 (S.I. 1998/473)

  8. The Committee draws the special attention of both Houses to these Rules on the ground that they constitute an unexpectedly limited exercise of the power.

  Rule 2(4) provides that a trainee is not to be stripped and searched in the sight of any person other than the officers who are present at the search, but these Rules do not include a provision equivalent to rule 33(3)(c) of the Secure Training Centre Rules 1998 (S.I. 1998/472), which stipulates that no trainee shall be stripped and searched in the presence of an officer who is not of the same sex as the trainee. The Committee asked the Department to explain this discrepancy. The Home Office replied in the memorandum printed in Appendix VII that they considered it essential that a search may only take place when at least two officers are present; that, wherever possible, only officers of the same sex as the trainee will be present, but that this will not invariably be possible because there will not necessarily be more than one female custody officer available at any one time. They submit in the memorandum that the situation in the secure training centre itself is different because there will always be sufficient custody officers of each sex to ensure compliance with rule 33(3)(c). The Committee decided that this rule required further examination and invited witnesses from the Home Office to give oral evidence on 28 April (transcript printed in Appendix VIII). At this meeting, the Home Office informed the Committee that the Home Secretary had reviewed these Rules and agreed that they should be amended to ensure that there will always be two custody officers of the same sex as a trainee with that trainee (Question 2). They considered that the amendment could be made fairly quickly (Questions 3 to 5), and assured the Committee that no trainee had so far been stripped and searched in the presence of an officer not of the same sex nor would be until the Rules are amended (Questions 6 to 8). The Committee reports rule 2(4) as constituting an unexpectedly limited exercise of the power.

ENVIRONMENTAL PROTECTION (CONTROLS ON HEXACHLOROETHANE) REGULATIONS 1998 (S.I. 1998/545)

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

  Regulation 5 makes the offence of contravening regulation 3 triable either way, ie. on indictment or summarily, and, as regards summary conviction, expresses the maximum fine in terms of "level 5 on the standard scale". The Committee asked the Department of the Environment, Transport and the Regions whether the maximum fine on summary conviction ought not to have been expressed in terms of the statutory maximum. In the memorandum printed in Appendix IX the Department accept that the regulation should have referred to the statutory maximum, and apologise for the error. The Committee reports regulation 5 for defective drafting, acknowledged by the Department.

NATIONAL HEALTH SERVICE (SERVICE COMMITTEES AND TRIBUNAL) (SCOTLAND) AMENDMENT REGULATIONS 1998 (S.I. 1998/657)

NATIONAL HEALTH SERVICE (SERVICE COMMITTEES AND TRIBUNAL) AMENDMENT REGULATIONS 1998 (S.I. 1998/674)

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

  These instruments implement the provisions contained in Schedule 1 to the National Health Service (Primary Care) Act 1997. That Schedule applies where the Secretary of State determines that a medical practitioner should be given preferential treatment when making an application for his name to be included in the medical list of an authority (ie. in Scotland, a Health Board; in England and Wales, a Health Authority) after ceasing to perform personal medical services under a pilot scheme under the Act. The Act enables an authority or any other person to make representations to the National Health Service Tribunal. Paragraph 3(1) of Schedule 1 to the Act provides that the Tribunal must inquire into any representations made by the authority that the inclusion of the applicant's name in their medical list would be prejudicial to the efficiency of the general medical services provided in their area. Paragraph 3(2) of that Schedule provides that the Tribunal may inquire into any similar representations made by any other person.

  These Regulations provide that such representations are to be sent to the Tribunal within 2 weeks after the authority receives an application (new regulation 24(1A) of S.I. 1992/434, inserted by regulation 3 of S.I. 1998/657, makes provision for Scotland, and new regulation 24(1B) of S.I. 1992/664, inserted by regulation 6(2) of S.I. 1998/674, makes provision for England and Wales). The Regulations also require the Secretary of State to publish information about applications made by medical practitioners and about the right of persons to make representations about such applications (new regulation 43B for Scotland, and new regulation 31B for England and Wales). However, no indication is given in either set of Regulations as to when this information is to be published.

  Any delay in the publication of the information will, in effect, mean that the period within which a person may make representations will be cut down to that extent. The Committee therefore asked the relevant departments (Scottish Office Department of Health for Scotland; Department of Health for England and Wales) whether the information will invariably be published immediately after the authority receives a representation and why, in order to ensure that a person wishing to make representations is not prejudiced by any delay in publication, the Regulations did not require representations to be sent to the Tribunal within two weeks of the date of publication of the information.

  In their memorandum, printed in Appendix X, the Scottish Office Department of Health say that they accept the Committee's point and will make an appropriate amendment within the next two months.

  The Department of Health seek in their memorandum (also published in Appendix X) to justify the provision on two grounds. First, that Health Authorities will be required by administrative directions to publish the information within a set timetable and, secondly, that new regulation 35 of S.I. 1992/664 provides that a Tribunal may extend the time for making representations. The Committee finds the Department's first argument unconvincing: even if their proposed timetable is adhered to, a period of a few days must necessarily elapse before the information is published, and if the timetable is not adhered to, the delay will be even greater. In either case, the time in which a representation may be made is reduced. Their second argument, that the Tribunal may extend the time for making representations, ameliorates the effect of but does not provide a justification for a flawed rule, which allows the (short) period for making representations to run before a person is informed of his right to make a representation.

  In conclusion, the Committee reports both new regulation 24(1A) of S.I. 1992/434 (inserted by regulation 3 of S.I. 1998/657) and new regulation 24(1B) of S.I. 1992/664 (inserted by regulation 11 of S.I. 1998/674) for defective drafting. This is acknowledged by the Scottish Office Department of Health in relation to S.I. 1998/657, but not by the Department of Health in relation to S.I. 1998/674.

NCIS (DISCIPLINE) (SENIOR POLICE MEMBERS) REGULATIONS 1998 (S.I. 1998/636)

NATIONAL CRIME SQUAD (DISCIPLINE) (SENIOR POLICE MEMBERS) REGULATIONS 1998 (S.I. 1998/637)

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

  Regulation 4 of both instruments refers to the discipline code. The Committee asked the Home Office to explain why no provision is made identifying or introducing this code, which is set out in Schedule 1. The Department answer in their memorandum (Appendix XI) that the reference in the discipline code in regulation 4 of each instrument should have been a reference to "the discipline code contained in Schedule 1" to the instrument. They state they regret the oversight, and will correct the mistake at the next opportunity. The Committee reports regulation 4 of both instruments for defective drafting, acknowledged by the Department.

  Regulation 5(2) of both instruments provides that paragraphs (3) and (4) are to have effect in cases arising from a complaint to which regulation 7 of the Complaints Regulations (NCIS (Complaints) Regulations 1998 or, as the case may be, National Crime Squad (Complaints) Regulations 1998) applies when the requirements of that regulation are dispensed with by or under regulations made thereunder. The Committee asked the Department to identify the regulations which may be made under regulation 7 of the Complaints Regulations. The Department say that the reference to regulations made thereunder should have been a reference to regulations which apply by virtue of regulation 12 of the Complaints Regulations. They say that they regret these errors and will correct them at the next opportunity. The Committee reports regulation 5(2) of both instruments for defective drafting, acknowledged by the Department.

  Regulation 16 of each instrument (hearing in the absence of the accused) provides in paragraph (2) that if, owing to the absence of the accused, it is impossible to comply with any of the procedure described in regulations 6, 7, 9 and 11 that procedure shall be dispensed with. Since the regulations specified deal with matters prior to the hearing, such as the giving of notice and the framing of charges, it was not clear what was the purpose and intended effect of the provision. The Department explain that the intended sense of regulation 16(2) is that if, owing to the absence of the accused, it has not been possible before the hearing to comply with the requirements of regulations 6, 7, 9 and 11, then those requirements can be dispensed with at the hearing if the accused is absent at the hearing. The Committee does not consider that, as currently drafted, regulation 16(2) of each instrument achieves that aim: the words "if it is impossible to comply with" the procedures in the specified provisions suggests that the impossibility of compliance relates to the hearing and not to a time prior to the hearing. The Committee therefore reports regulation 16(2) of each instrument for defective drafting.

POLICE ACT 1997 (PROVISIONS IN RELATION TO THE NCIS SERVICE AUTHORITY) ORDER 1998 (S.I. 1998/633)

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

  Article D2 (appointment of committees) refers to "appointing authorities", but this term is not defined in article A2 (interpretation). The Committee asked the Home Office to explain what "appointing authority" means. The Department reply in their memorandum, printed in Appendix XII, that it means "one of two or more local authorities which appoint a joint committee under article D2". The Committee considers that this definition should have been included in article A2, and therefore reports that article for defective drafting.

  Paragraph (4) of article A2 includes in the expression "local authority" a local authority, police authority, the NCIS Service Authority and the NCS Service Authority. Other provisions in the Order (eg. articles D1(4), D2(1)(b), D3 and K2) allow "local authorities" as so defined to act jointly in various ways. The Committee asked the Department whether it was their intention to permit two local (government) authorities to act jointly, or two police authorities to act jointly, without the NCIS Service Authority or the NCS Service Authority. In their memorandum the Department say that their intention in framing the provisions was to enable the NCIS Service Authority and the NCS Service Authority to act jointly with each other and with local (government) authorities and police authorities in discharging their functions. They accept, however, that the provisions are wide enough to enable local (government) authorities and police authorities to act jointly without the NCIS Service Authority or the NCS Service Authority. The Committee reports article A2(4) for defective drafting because the definition of the term "local authority" does not achieve the intention of the Department as set out in their memorandum.

  Article E7(7) makes provision for construing references in article E to indirect pecuniary interests of a member of the Authority. The Committee asked the Department to identify those references. The Department accept that article E7(7) should have begun "References in this Part" and not "References in this article". They state that they regret the error and that it will be corrected at the next opportunity. The Committee reports article E7(7) for defective drafting, acknowledged by the Department.

  Article G16(1) provides that in determining the amount of a basic credit approval to be issued by the Authority, the Secretary of State may have regard to such factors as appear to him to be appropriate. The Department admit that the italicised word ought to be "to", state that they regret the error and say that it will be corrected at the next opportunity. The Committee reports article G16(1) for defective drafting, acknowledged by the Department.

  Article G17 (use of credit approvals by the Authority) is based on section 56(1) of the Local Government and Housing Act 1989, but does not include a provision which corresponds to section 56(5) of that Act, which prohibits the making of a determination under subsection (1) after 30 September in the financial year following that in which the Authority defray the expenditure or, as the case may be, enter into or vary the credit arrangement in question. The Department concede that article G17 should have included a provision which corresponds to section 56(5) of the 1989 Act and say that the omission was an oversight by the draftsman which will be corrected at the next opportunity. The Committee reports article G17 for defective drafting, acknowledged by the Department.

  Article J11(1) provides that, where the Secretary of State by regulation under section 8 of the Local Government and Housing Act 1989 requires the NCS Service Authority to incorporate such provisions as may be prescribed by the regulations in standing orders relating to its staff, the NCIS Service Authority is to be under the same duty in relation to standing orders made by it. The Committee asked the Department firstly what authorises the Secretary of State to use section 8 of the 1989 Act in respect of the NCS (or NCIS) Service Authority; and secondly why the duties are imposed on the NCIS Service Authority by reference to the NCS Service Authority. The Department accept that there is no power for the Secretary of State to make regulations relating to the NCS (or NCIS) Service Authority under section 8 of the 1989 Act and that article J11 is therefore of no effect. They state that article J11 will be revoked at the next opportunity. The Committee reports article J11 for defective drafting, acknowledged by the Department.

  The Department concede that, in article J18(2), the reference to article E1 should be to E2. They state that they will correct the mistake at the next opportunity. The Committee reports article J18(2) for defective drafting, acknowledged by the Department.

  The Department also concede that, in article J20(3), "£500" should read "£5000" and say that they will correct the mistake at the next opportunity. The Committee reports article J20(3) for defective drafting, acknowledged by the Department.

CONTROL OF LEAD AT WORK REGULATIONS 1998 (S.I. 1998/543)

  13. The Committee draws the special attention of both Houses to these Regulations on the grounds that they require elucidation in one place and that they make an unexpectedly narrow use of powers in four other places.

  Regulation 3(1) provides that, "where any duty is placed by these Regulations on an employer in respect of his employees, he shall, so far as is reasonably practicable, be under a like duty in respect of any other person ... who may be affected by the work". The Committee asked the Department of the Environment, Transport and the Regions to explain the purpose and effect of this provision, and in particular how it operates in relation to the duties imposed on employers by regulations 4(1), 6(2) and 8(1). The Department explain in the memorandum printed in Appendix XIII that the purpose of regulation 3(1) is to extend the duties of employers with regard to their employees to other people such as employees of other employers, visitors to the workplace and third parties who might be exposed to lead away from the workplace. They submit that regulation 4(1), which specifies the type of glaze to be used by an employer, does not place a duty on an employer in respect of his employees and is therefore not relevant for the purposes of regulation 3(1). The Committee does not accept that this is so, having regard both to its sense and to the expressed purpose of these Regulations. Since regulation 4(1) is a strict duty, the effect of its being applied "so far as is reasonably practicable" is unclear. Regulation 6(2) provides that "so far as is reasonably practicable" the prevention or control of exposure of employees to lead shall be secured through measures other than the provision of personal protective equipment. The Department state that in this case regulation 3(1) would not usually impose any other duties on an employer but might if, for example, contractors were liable to be exposed to lead contamination to which employees were not exposed. They add that similar considerations apply to regulation 8(1), which provides that any control measure provided under regulation 6 must be kept in good working repair. But the memorandum does not advert to the effect of the words "so far as is reasonably practicable" on either regulation 6(2) (which already contains those words) or on regulation 8(1) (which is qualified by the words "where appropriate"). The Committee considers that regulation 3(1), while not defectively drafted, is obscure in that it does not make clear what its detailed effect is on the other regulations. The Committee reports regulation 3(1) on the grounds that it requires elucidation, which is not satisfactorily provided by the Department.

  These Regulations are made under sections 15 and 82(3)(a) of, and Schedule 3 to, the Health and Safety at Work etc. Act 1974 and implement provisions of Council Directive 82/605/EEC, which lays down limit values and specific requirements in order to protect workers against risks to their health arising or likely to arise at work from exposure to lead. Articles 2(3) and 2(4) of the Directive require action to be taken where the blood-lead level of workers exceeds a stated limit value. In the first case Member States are to endeavour to carry out biological monitoring and in the second case procedures prescribed in the Directive for lead-in-air monitoring and medical surveillance are to be activated. Article 2(4) also requires those procedures to be activated where the exposure to a concentration of lead-in-air exceeds a stated limit value. As regards article 2(3) the Department maintain that they have been implemented by regulations relating to medical surveillance (regulations 10(1) and (2), read with Schedule 2). However, the Committee notes that those provisions are triggered only by exposure to a concentration of lead in the atmosphere and not by excessive blood-lead levels. As regards article 2(4) the Department admit a failure to implement the Directive, which they justify on the ground that the limit value for the blood-lead level specified in the article is not sufficient evidence of significant exposure to lead of the whole work force.

  Article 3(3)(i) permits monitoring of the concentration of lead-in-air to be extended from every three to every twelve months provided that, on the previous two consecutive occasions on which monitoring was carried out, the results of the measurement, inter alia for individual workers, showed that a limit value was not exceeded. The Department explain their failure to implement this provision on the ground that such lead-in-air concentration is not sufficient evidence of significant exposure to lead of the whole work force.

  

  As regards article 2(2), which requires workers (and their representatives) to be provided with adequate information on the existence of statutory limit values when limit values for lead-in-air and the blood-lead level are exceeded, the Department fail to identify any provision of the instrument which in terms implements this requirement, and nor have they explained how it might have been indirectly implemented by any provision.

  In two cases (article 2(4) and article 3(3)(i)) the Department defend their failure to implement the Directive on the grounds that its requirements are unnecessary or ineffective. That, however, is a point to make in negotiations; if Member States were entitled to avoid their obligations to implement Directives whenever they judged them superfluous, widespread avoidance of the duty to implement could be expected. In the remaining cases (article 2(3) and article 2(2)) the Department have, firstly, not implemented the provisions of the Directive which require action to be triggered by the blood-lead level of workers and, secondly, have not fully implemented the requirements of the Directive as regards the giving of information to workers. The Committee therefore reports in all cases that the Department have made an unexpectedly narrow exercise of their powers.


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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