Joint Committee on Statutory Instruments Thirty-Sixth Report



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.

MAGISTRATES' COURTS COMMITTEES (MERSEYSIDE) AMALGAMATION ORDER 1998 (S.I. 1998/1175)

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

  Paragraph 3(1) of the Schedule to the Order imposes a duty to appoint a clerk designate "as soon as reasonably practicable after the coming into force of this Order and in any event not later than the day before the first appointed day". The first appointed day is fixed in paragraph 1 as 1st June 1998, so the provision means "not later than 31st May 1998". Given that the coming into force date of the Order is 1st June 1998, the Committee asked the Lord Chancellor's Department to explain how the duty to make the appointment can arise so as to make the appointment have effect prior to that date. The Committee asked a similar question about the duties to be complied with under paragraph 4(3), 4(4) and 5(2) of the Schedule to the Order where likewise the last date for compliance (31st May 1998) preceded the date of coming into force of the Order. The Department explain in the memorandum printed in Appendix I that the first appointed day should have been defined as 1st July 1998 (as in the similar Order relating to the West Midlands (S.I. 1998/1176)), and not 1st June, and say that they will make an amending instrument at the earliest opportunity[1]. The Committee reports the definition of "the first appointed day" in the Schedule to the Order for defective drafting, acknowledged by the Department.

PACKAGING (ESSENTIAL REQUIREMENTS) REGULATIONS 1998 (S.I. 1998/1165)

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

  Regulation 6(1) places a general duty on each responsible person not to place on the market any packaging unless the essential requirements have been complied with, "provided always that placing on the market for the purposes of this regulation shall not occur in respect of reused packaging". It seemed to the Committee that this provision could be interpreted to mean that either (a) reused packaging shall not be placed on the market or (b) marketing of reused packaging is not to be construed as placing on the market within the meaning of the regulation. The Department of Trade and Industry's memorandum in Appendix II indicates that the latter meaning is intended. The Committee considers that the wording of regulation 6(1) (in particular the italicised words) does not achieve the Department's stated intention and is more likely to be taken to mean that reused packaging should not be placed on the market at all, and reports the provision for defective drafting.

  Paragraph 2(b) of regulation 13 applies sections 39 (defence of due diligence) and 40 (liability of persons other than the principal offender) of the Consumer Protection Act 1987 to the obstruction offences under section 32 of that Act as applied to the Regulations. Given that in the 1987 Act sections 39 and 40 do not apply to the obstruction offences in section 32, the Committee asked the Department to explain why regulation 13(2)(b) applies sections 39 and 40 to section 32 and how they could be relevant to an offence of obstruction. The Department explain in general terms that they consider that a defence of due diligence should be available in relation to certain of the offence provisions in the Regulations and, as a consequence, provision should also be made in respect of persons other than a principal offender. They fail, however, to say how the provisions of sections 39 and 40 of the Act could be relevant to section 32. The Committee considers that it makes no sense for a defence consisting in showing that the accused took all reasonable steps and exercised all due diligence to avoid committing the offence charged to be applied to the offences in section 30 which require an intention to obstruct or to fail to comply with a requirement to eg. open a vending machine. The Committee accordingly reports regulation 13(2)(b) for defective drafting.

  Regulation 15(1) offences under regulation 14(a) are triable either way (that is, both on summary conviction and on indictment). The Committee therefore asked whether, in regulation 15(1)(a), the maximum fine on summary conviction should be expressed in terms of the "statutory maximum" and not "as a fine exceeding level 5 on the standard scale". The Department acknowledge that this is the case and undertake to rectify the mistake at the first available opportunity. The Committee reports regulation 15(1)(a) for defective drafting, acknowledged by the Department.

MEASURING INSTRUMENTS (EEC REQUIREMENTS) (FEES) REGULATIONS 1998 (S.I. 1998/1177)

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

  Regulation 2(2) provides that "the services referred to in these Regulations are those services mentioned or referred to in Schedule 1 hereto". The Committee asked the Department of Trade and Industry to identify those services (for which fees are charged under the Regulations) by reference to the contents of Schedule 1. The Department answer in the memorandum printed in Appendix III that the services are those provided by the Department of Trade and Industry in respect of the relevant legislation and are identified in columns three and four of the tables in Schedule 1; the services being pattern approval, initial verification, type approval and unit verification. The Committee considers that regulation 2(2) is defectively drafted as it does not properly identify these as the services envisaged, and reports accordingly.

  Paragraph 2 of Schedule 2 provides for a fixed fee of £52 for initial verification under regulation 7 of the Alcoholometers and Alcohol Hydrometers (EEC Requirements) Regulations (S.I. 1977/1753), "payable as indicated in paragraphs 3 and 4 below". The Committee asked the Department to explain the reference to paragraph 3, given that (providing as it does for monthly invoices) it is limited to variable fees chargeable under paragraphs 1(a) and (b). The Department accept that the reference to paragraph 3 should not have been included, and say that they will correct the mistake at the first available opportunity. The Committee reports paragraph 2 of Schedule 2 for defective drafting, acknowledged by the Department.


1  
The amending instrument - S.I. 1998/1293 - is now in force, bringing this Order into line with the West Midlands Order. Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 1998
Prepared 22 June 1998