Joint Committee on Statutory Instruments Forty-Seventh Report



FORTY-SEVENTH 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 Consumer Credit (Exempt Agreements) (Amendment) Order 1998 (S.I. 1998/1944) is printed in Appendix I to this Report.

3. A memorandum by the Department of Trade and Industry in connection with the Outer Space Act 1986 (Fees) (Amendment) Regulations 1998 (S.I. 1998/2032) is printed in Appendix II to this Report.

4. A memorandum by the Department of Social Security in connection with the Social Security (Contributions) Amendment (No. 3) Regulations 1998 (S.I. 1998/2211) is printed in Appendix III to this Report.


FIREARMS RULES 1998 (S.I. 1998/1941)

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

Condition 2 of the shot gun certificate form (set out in Schedule 2, Part II to the Rules) provides that the holder of the shot gun certificate must without undue delay inform the police of the theft, loss or destruction of the certificate and/or the theft, loss, deactivation or destruction of any shot gun to which it relates. The Committee asked the Home Office to explain the inclusion of the italicised words, given that rule 5(4)(ii) requires the holder of the certificate to give the information within 7 days of the event, and that section 34(1) of the Firearms (Amendment) Act 1997 imposes the same 7 day time limit in relation to giving notice of the de-activation, destruction or loss of a firearm to which the certificate relates. The Department accept in the memorandum printed in Appendix IV that condition 2 of Schedule 2, Part II should stipulate that the information must be given "within 7 days" and not "without undue delay". They apologise for the discrepancy and say that the condition will be amended at the next appropriate opportunity. They add that in the mean time all police forces have been asked to amend any shot gun certificates that they issue so that condition 2 correctly reflects rule 5(4)(ii). The Committee reports condition 2 of Part II of Schedule 2 to the Rules for defective drafting, acknowledged by the Department.


MOTOR VEHICLES (EC TYPE APPROVAL) REGULATIONS 1998 (S.I. 1998/2051)

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

Paragraph (1) of regulation 15 requires a notice given by the Secretary of State under the regulations listed in paragraph (2) to specify the reasons for his decision, the right to request a review and the time limit for making such a request. The Committee asked the Department of the Environment, Transport and the Regions to explain why regulation 9(9), which requires the Secretary of State to give notice of his decision where he refuses to exercise his powers under paragraph (7) or (8) of regulation 9, is not mentioned in regulation 15(2). The Department say in their memorandum (printed in Appendix V) that the omission was on oversight. The Committee reports regulation 15(2) for defective drafting, acknowledged by the Department.

The Committee asked the Department whether the references in regulation 15(2)(d) to regulation "11(10) or (11)" ought to have been to "11(11) or (12)". The Department agree that the references should have been as the Committee suggested. Accordingly, the Committee reports regulation 15(2)(d) for defective drafting, acknowledged by the Department.

The Department state that they intend to make amendments to the Regulations to correct these errors at the earliest opportunity.


DARTFORD-THURROCK CROSSING REGULATIONS 1998 (S.I. 1998/1908)

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

Part II of the Table in regulation 4(1) prescribes the charge payable for the use of the bridge by a vehicle of the dimensions specified. A charge of ,40 is prescribed for vehicles greater than 3.65 metres but less than or equal to 6.1 metres wide which cross during the day, and a charge of ,20 is prescribed for vehicles greater than 3.76 metres but less than or equal to 6.1 metres wide which cross at night. The Committee asked the Department of the Environment, Transport and the Regions whether the italicised figure of 3.76 metres ought to be 3.65 metres. The Department acknowledge in a memorandum printed in Appendix VI that the figure ought to be 3.65 metres, and say that they will correct the error in amending Regulations. The Committee reports Part II of the Table in regulation 4(1) for defective drafting, acknowledged by the Department.


MERCHANT SHIPPING (RADIO INSTALLATIONS) REGULATIONS 1998 (S.I. 1998/2070)

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

Regulation 21 defines "radio operator" for the purposes of Part III of the Regulations. The Committee asked the Department of the Environment, Transport and the Regions whether the expression is used anywhere else in that Part and, if so, in what provision. In the memorandum printed in Appendix VII the Department accept that the term "radio operator" is not used elsewhere in Part III and that it is therefore unnecessary. The Committee reports regulation 21 for defective drafting, acknowledged by the Department.

In response to questions by the Committee the Department agree that the reference in regulation 39(2) to Schedule 5 ought to be to Schedule 6; and that the reference in regulation 47(2) to Schedule 6 ought to be to Schedule 7. The Committee reports both regulations for defective drafting, acknowledged by the Department.

Regulation 45(6)(a) provides that no certificate of competency shall be deemed to be valid on any date if granted more than two years before that date and "the holder's period, aggregate of periods" of experience on that date is less than three months. The Committee asked whether the aggregate of several periods is intended to be an alternative to a single continuous period. The Department say that the aggregate of periods is intended to be an alternative, and that the word "or" was omitted before the words "aggregate of periods". The Committee reports regulation 45(6)(a) for defective drafting, acknowledged by the Department.

The Department say that they regret these errors and undertake to correct them at the first opportunity.

Regulation 44(3)(a) provides that "the reserve source of energy [for radio installations] shall preferably consist of batteries, provided that such batteries shall not be fitted in the same space as the means for bringing the reserve source of energy into immediate operation". Breach of the requirements of the Regulations makes the ship liable to detention (regulation 49(1)) and is an offence (regulation 50(2)). The Committee asked the Department whether regulation 44(3)(a) imposes a requirement for the purposes of regulation 49(1) and whether breach of the provision is an offence under regulation 50(2). The Department say that the first part of regulation 44(3)(a) ("the reserve source of energy shall preferably consist of batteries") does not impose a requirement. They explain that its purpose is to make clear to ship owners and masters that the Secretary of State considers it preferable that the reserve source of energy consist of batteries. However, no requirement of the Regulations is breached if the reserve source of energy does not consist of batteries. It appears to the Committee that this first part of regulation 44(3)(a) would not be construed by a court as imposing any obligation and as carrying either of the sanctions mentioned. The Department go on to explain that the second part of the regulation does, however, impose a requirement under regulation 49(1) and is a breach for the purposes of regulation 50(2). The Committee reports regulation 44(3)(a) on the ground that it requires the elucidation provided by the Department.


BRUCELLOSIS AND TUBERCULOSIS (SCOTLAND) COMPENSATION AMENDMENT ORDER 1998 (S.I. 1998/2181)

9. The Committee draws the special attention of both Houses to this Order on the ground that the Department failed to notify the Lord Chancellor and the Speaker of the House of Commons that the Order came into force before it was laid before Parliament[2].

This Order was laid before Parliament on 4 September 1998 and came into force on that day. Section 4 of the Interpretation Act 1978 (as applied to subordinate legislation) provides that an instrument comes into force at the beginning of the day on which it is stated to come into force. Accordingly the Order came into force immediately after midnight at the start of 4 September, and therefore came into force before it was laid before Parliament. Under the proviso to section 4(1) of the Statutory Instruments Act 1946 the Lord Chancellor and the Speaker of the House of Commons must be notified forthwith in such a case. The Committee therefore asked the Scottish Office whether a notification had been sent. They reply in a memorandum printed in Appendix VIII that a notification was not sent, because the officials concerned may not have known that a notification must be sent when the instrument is laid on the same day that it comes into force. The Committee reports the Order on the ground that neither the Lord Chancellor nor the Speaker were notified that it had come into force before it was laid.


1  The Orders of Reference of the Committee are set out in the First Report, Session 1997B98 (HL Paper 4; HC 33Bi). Back
2  See the 13th Report, Session 1997B98, paragraph 7 and the 5th Report, Session 1996-97, paragraph 9. Back

 
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