Joint Committee on Statutory Instruments Forty-Second 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. The Committee draws the special attention of both Houses to this draft Order on the ground that it makes an unexpected use of the power under which it is made.

  Section 58(3) of the Courts and Legal Services Act 1990 provides that "a conditional fee agreement which relates to specified proceedings shall not be unenforceable ....". Specified proceedings are "proceedings of a description specified by order made by the Lord Chancellor" (section 58(4)). The draft Order provides in article 3(1) that "All proceedings are proceedings specified for the purposes of section 58(3)". The Explanatory Note attached to the draft Order calls attention to section 58(1)(a) which provides that agreements in respect of certain proceedings (criminal proceedings and specified family proceedings) are excluded from the scope of section 58. The issue which concerns the Committee is whether Parliament intended the power to specify a description of proceedings to be used to specify all proceedings not covered by section 58(1)(a).

  The issue is similar to the issue which the Committee considered in its Sixth Report of Session 1996-97 in relation to the Education (School Information) (England) Regulations 1996 (S.I. 1996/2585). The Regulations were made under section 22(1) of the Education Reform Act 1988 which provided that the Secretary of State may by regulations require "in relation to every maintained school, the local education authority, the governing body or the head teacher to make available ... such information relevant for the purposes of this Chapter (including information as to the matters mentioned in subsection (2) below) as may be prescribed". One of the matters mentioned in subsection (2) is the educational achievements of pupils at such categories of school as may be prescribed. The Regulations required information to be made available about "national summary figures" i.e. about the average results obtained in examinations by pupils at all schools in England. The Committee questioned whether all schools is a category of schools and drew attention to similar concerns expressed in its 23rd Report of Session 1995-96 about earlier Regulations made under the same power. The Committee concluded that if Parliament had intended the power to be exercised in that way section 22 would have read "educational achievements of pupils at all schools or at such categories of schools as may be prescribed". The Committee reported the Regulations as making an unexpected use of powers - it had reported in similar terms on the earlier Regulations.

  Section 22 was subsequently consolidated into section 408 of the Education Act 1996 and then amended by the School Standards and Framework Act 1998 when the words "pupils at such category of schools" were replaced by "such classes or descriptions of pupils".

  The Committee applied a somewhat similar analysis to the Merchant Shipping (Port Waste Reception Facilities) Regulations 1997 (S.I. 1997/3018) on which it reported in its 21st Report of Session 1997-98. The Committee reported those Regulations as being of dubious vires.

  The Lord Chancellor's Department, in a memorandum (printed in Appendix I) submitted to the Committee when the draft Order was laid, consider the Committee's comments in its Sixth Report of Session 1996-97 and argue that the proposed exercise of the power in this case is justified on two grounds. First, that the power allows one or more proceedings to be specified and that, as there is no limit on the number, there is no objection to the exercise of the power at the end of the spectrum when all proceedings are specified. Second, Parliament has expressed a clear intention as to exceptions, these are listed in section 58(10) and on ordinary principles of construction there would appear to be no ground for holding that the Lord Chancellor had to carve out some further exception from his exercise of the general power.

  The Committee has considered carefully the arguments set out in the memorandum and has been informed that the Department do not wish to be given the opportunity to make further representation as that would delay the progress of the draft. The Committee cannot distinguish the point at issue here from those on which it has commented before and which are referred to above. The Committee therefore reports the draft Order as making an unexpected use of powers.


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

  This instrument is made under section 2(2) of the European Communities Act 1972 and supplements Council Regulation (EC) 926/98 which prohibits the supply to Yugoslavia of equipment which might be used for internal repression or terrorism. Some kinds of equipment may, however, be lawfully supplied under Government licence subject to compliance with the conditions attached for the time being to the licence including conditions attached unilaterally by the Secretary of State to an existing licence.

  Regulation 3(3) makes it an offence for a licensee who has supplied equipment under his licence to fail to comply with a requirement or condition to which it is subject unless "(a) the licence had previously been modified by the Secretary of State without that person's consent, (b) the alleged failure to comply would not have been a failure had the licence not been so modified, and (c) that person proves that the sale or supply had taken place before the modification had been made". These provisions are formulated differently from equivalent provisions in two similar instruments referred to in the Department's memorandum[2], and the Committee was unclear as to whether the burden of proof in respect of (a), (b) and (c) lay on the prosecution or the accused licensee.

  In response to the Committee's request for an explanation of the provision, the Department reply in the memorandum printed in Appendix II that, as with the other two instruments controlling exports, they may well not know the date of supply of equipment on which it has imposed, by unilateral modification of the licence, a new obligation on the licensee. Sub-paragraph (c) is there to place on the licensee the burden of proving that the date of supply preceded the modification. The principle behind the offence created by regulation 3(3) is the same as it is in the other two instruments: a licensee does not have to comply with an obligation imposed after the supply of the equipment.

  Given this principle common to this instrument and the others mentioned, the Committee's view is that the offence is defectively drafted. The implications from the connecting word "unless" and the express provision of sub-paragraph (c) as to the evidential burden of proof is that the matters set out in sub-paragraphs (a) and (b) have to be proved by the prosecution. If this implication is correct for (a) it appears that the principle of the two other instruments has been reversed and not followed. Sub-paragraph (a) appears to the Committee to be either ambiguous as to the burden of proof or framed so as not to implement the common policy intention. As regards the new sub-paragraph (b), it appears to the Committee as being defective as unclear about the burden of proof but also, more fundamentally, as merely repeating what is inherent in the opening words (in particular "is subject") describing the offence. Accordingly the Committee reports regulation 3(3) for defective drafting.


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

  Regulation 16(1)(b) empowers an authorised person to "suspend the operation of ships by [the] company" when he considers that the company is unable to operate ships without risk. In such a case regulation 16(1)(c) calls for a notice stating that the operation of a specified service is suspended. The Committee asked the Department of the Environment, Transport and the Regions to explain the discrepancy between the italicised words in sub-paragraphs (b) and (c), and what is intended to be suspended. In the memorandum printed in Appendix III the Department state that failures identified under sub-paragraph (b) might relate to the ability of a company to run safely all of their ships, only one service or only one ship. Sub-paragraph (c) is therefore intended to enable the suspension of all ships, a particular service, or a particular ship. The Department recognise that the wording is not appropriate for this last case, and say that they will give consideration to an amendment at the first opportunity. The Committee reports regulation 16(1)(c) for defective drafting, acknowledged by the Department.

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   Export of Goods (Control) Order 1994 (S.I. 1994/1191) and Dual-Use and Related Goods (Export Control) Regulations 1996 (S.I. 1996/2721). Back

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