Joint Committee on Statutory Instruments First Report


FIRST REPORT


FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE STATUTORY INSTRUMENTS, ETC.

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 Scottish Office in connection with the Road Works (Registers, Notices, Directions and Designations) (Scotland) Amendment Regulations 1998 (S.I. 1998/2254) is printed in Appendix I to this Report.

  3. A memorandum by the Ministry of Agriculture, Fisheries and Food in connection with the Medicines (Products for Animal Use—Fees) Regulations 1998 (S.I. 1998/2428) is printed in Appendix II to this Report.

  4. A memorandum by the Ministry of Agriculture, Fisheries and Food in connection with the Olive Oil (Marketing Standards) (Amendment) Regulations 1998 (S.I. 1998/2410) is printed in Appendix III to this Report.

PROVISION AND USE OF WORK EQUIPMENT REGULATIONS 1998 (S.I. 1998/2306)

  5. The Committee draws the special attention of both Houses to these Regulations on the ground that they require the elucidation provided.

  Regulation 6(4) requires an employer to ensure that no work equipment (a) leaves his undertaking or (b) if obtained from the undertaking of another person is used in his undertaking, unless it is accompanied by physical evidence that the inspection required to be carried out under this regulation has been carried out. The Committee asked the Department of the Environment, Transport and the Regions to explain (a) what is meant by physical evidence and (b) in a case where employer Y has obtained the equipment from employer X, how Y can know when regulation 6 last required X to have the equipment inspected. In answer to question (a) the Department explain (in the memorandum printed in Appendix IV) that "physical evidence" has the meaning it has in Article 4a(3) of Council Directive 89/655/EEC as amended by Council Directive 95/563/EC, in which it is not defined. The Department suggest that the expression is meant to restrict the evidence to the kind that can be kept at the disposal of the authorities concerned and therefore excludes, for example, oral representations but includes documents, whether or not associated with markings on the work equipment itself. The Department say in response to question (b) that (on the basis that X has discharged his own obligation under it) Y will know when regulation 6 last required X to have the equipment inspected by the "physical evidence" (eg. a certificate) which comes with the equipment to Y. The Committee reports both points as requiring the elucidation provided by the Department.

LIFTING OPERATIONS AND LIFTING EQUIPMENT REGULATIONS 1998 (S.I. 1998/2307)

  6. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in one respect and in another respect require the elucidation provided.

  In response to a question from the Committee the Department of the Environment, Transport and the Regions acknowledge in the memorandum printed in Appendix V that the reference in regulation 3(4) to paragraph (5)(b) ought to be to paragraph (3)(b). The Department say that they will make a correction when other amendments are made to the Regulations. The Committee reports regulation 3(4) for defective drafting, acknowledged by the Department.

  Regulation 11(2)(a)(i) and (ii) assumes that regulation 9(1), which applies to "lifting equipment", also applies to an "accessory for lifting", despite the fact that the latter expression is not mentioned in regulation 9(1). The Committee asked the Department of the Environment, Transport and the Regions to explain the basis of this assumption, given that the two expressions are defined separately in regulation 2(1) and that regulation 9(3) deals separately with lifting equipment and an accessory for lifting. The Department reply in the memorandum printed in Appendix V that "lifting equipment" and "an accessory for lifting" are not treated as different cases in regulation 9(3). The first limb of regulation 9(3) provides that "lifting equipment" must be thoroughly examined: sub-paragraph (a)(i) refers to a certain kind of lifting equipment and to an accessory for lifting; sub-paragraph (a)(ii) refers to other kinds of lifting equipment: all of these come under the umbrella words "lifting equipment" used at the start of regulation 9(3). The Department also submit that the separate definitions of "lifting equipment" and "accessory for lifting" in regulation 2(1) do not contradict the necessary inference contained in regulation 9(3) that an "accessory for lifting" is a kind of "lifting equipment". The Committee considers that, although the definitions do not make this clear, the inference from regulation 9(3) does and it accordingly reports the regulations as requiring the elucidation provided by the Department.

MERCHANT SHIPPING AND FISHING VESSELS (HEALTH AND SAFETY AT WORK) (EMPLOYMENT OF YOUNG PERSONS) REGULATIONS 1998 (S.I. 1998/2411)

  7. The Committee draws the special attention of both Houses to these Regulations on the ground that they do not adequately implement a Community obligation.

  Regulation 5(1) seeks to implement article 7(1) of Council Directive 94/33/EC by obliging employers to take appropriate measures to protect young persons at work from risks to their health and safety arising from their lack of experience, absence of awareness of risks or the fact that they have not yet fully matured. But article 7(1) also refers to the risks to the development of young persons, and so the Committee asked the Department of the Environment, Transport and the Regions why regulation 5(1) does not reproduce this reference. The Department answer in the memorandum printed in Appendix VI that any obligation on an employer must be one which he is able to meet, and that an employer could not properly assess the risk to the development of young persons without expert professional assistance. They add that since paragraph (2) of article 7 provides that the general obligation in paragraph (1) is met by prohibiting specified work, the Secretary of State considers that he has met the obligation in paragraph (1) by the specific provisions made in regulations 5(4), 5(5) (with the Schedule) and 7(1). The Department's point that the assessment of risk to the development of a young person can not be made without expert professional assistance does not excuse the imposition of such an obligation on an employer: it is not unusual for health and safety requirements to necessitate the use of expert assistance. The inclusion of regulation 5(1) in the regulations itself indicates that the Department acknowledge that article 7(1) of the Directive constitutes a separate obligation. The omission of one element of article 7(1) means that the provision has not been properly implemented, and the Committee reports regulation 5(1) on the ground that it insufficiently implements a Community obligation.

NATIONAL HEALTH SERVICE (CHOICE OF DENTAL PRACTITIONER) (SCOTLAND) REGULATIONS 1998 (S.I. 1998/2259)

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

  Regulation 3(c)(i) provides that an application to receive primary dental services shall be made under regulation 2(1) on behalf of any person under the age of 18 who is looked after by a local authority within the meaning of section 17(6) of the Children (Scotland) Act 1995. The Committee asked the Scottish Office to explain who is entitled to make an application on behalf of such a person, and, if some words have been missed out, to identify them. The Department confirm in the memorandum printed in Appendix VII that the words "by a person duly authorised by that authority" were inadvertently omitted from the end of regulation 3(c)(i) and say that corrective Regulations have been prepared and will be laid before both Houses shortly. The Committee reports regulation 3(c)(i) for defective drafting, acknowledged by the Department.

LATE PAYMENT OF COMMERCIAL DEBTS (RATE OF INTEREST) ORDER 1998 (S.I. 1998/2480)

  9. The Committee draws the special attention of both Houses to this Order because it was invalidly made.

  The Committee asked the Department of Trade and Industry whether the consent of the Treasury to the making of this Order was obtained, as required by section 6(1) of the Late Payment of Commercial Debts (Interest) Act 1998; and, if so, why this is not mentioned in the preamble (as required by paragraph 2.26 of Statutory Instrument Practice) and why the instrument does not indicate that it was signed by two of the Lords Commissioners who consented to the making of the Order. The Department reply in the memorandum printed in Appendix VIII that due to an oversight the Order did not receive the consent of the Treasury and is therefore invalid. When the error was drawn to the attention of the Department by the Committee they set in motion the making of a new Order, which was made (with the consent of the Treasury) on 12 November, laid before Parliament on that day and came into force on 13 November (S.I. 1998/2765). The Department state that very few creditors are likely to have been affected by the error. They nevertheless corrected it as soon as possible to minimise any prejudice. The Committee reports the first Order on the ground that it was invalidly made, acknowledged by the Department.

DRINKING MILK REGULATIONS 1998 (S.I. 1998/2424)

  10. The Committee draws the special attention of both Houses to these Regulations on the grounds that they fail to comply with proper drafting practice and the Explanatory Note is incomplete.

  These Regulations make provision with respect to Council Regulation (EC) No. 2597/97. The Committee asked the Ministry of Agriculture, Fisheries and Food why regulation 2 contains no provision indicating that expressions such as "milk" and "drinking milk" which have a meaning in the Council Regulation have the same meaning in these Regulations. The Department say in the memorandum printed in Appendix IX that they did not include such a provision because it was clear in context that the expressions were intended to have the same meanings as in the Council Regulation. They now accept, however, that as the enabling power has its own different definition of "milk", it would have been better to include a provision like the one suggested by the Committee: they say that they will include it when the Regulations are next amended. The Committee reports regulation 2 on the ground that it does not accord with proper drafting practice.

  The Committee also asked why, given that regulations 3 and 4 cannot be understood unless read in conjunction with the Council Regulation, the Explanatory Note does not indicate the substance of the prohibitions imposed by the regulations, as required by paragraphs 2.73 and 2.74 of Statutory Instrument Practice. The Department reply that they regret the omission and that they will seek to correct the mistake in the Annual Volume of Statutory Instruments and any other future reprints of the instrument. The Committee reports the instrument on the ground that its Explanatory Note is incomplete.

ROAD TRAFFIC (PARKING ADJUDICATORS) (CITY OF EDINBURGH) REGULATIONS 1998
(S.I. 1998/2233)

  11. The Committee draws the special attention of both Houses to these Regulations on the ground that they make an unexpectedly narrow use of the enabling power.

  These Regulations prescribe the procedure to be followed in relation to appeals against decisions of the parking authority in the City of Edinburgh. Regulation 4(1)(c) provides that upon receiving a notice of appeal, the proper officer must send to the parking authority a copy of the notice of appeal and any direction extending the time limit for appealing. The Committee asked the Scottish Office why no corresponding provision is made for informing the appellant who has requested the extension. In a memorandum printed in Appendix X the Department say that the actions required by regulation 4(1) only arise in relation to a valid notice of appeal: sending to the appellant an acknowledgement that the notice of appeal has been received (as required by regulation 4(1)(a)) is sufficient to inform the appellant that the appeal will be proceeded with. This suffices, in a strict legal sense, to explain why it is not also necessary to copy the direction extending the time limit for appealing. But from the point of view of the appellant having a mere receipt (as distinct from one which also states that the appeal is being proceeded with) is not clear. The Committee reports regulation 4 on the ground that it makes an unexpectedly narrow exercise of the enabling power.

TEACHERS (COMPENSATION FOR REDUNDANCY AND PREMATURE RETIREMENT) (AMENDMENT) REGULATIONS 1998 (S.I. 1998/2256)

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

  These Regulations amend the Teachers (Compensation for Redundancy and Premature Retirement) Regulations 1997. In the memorandum printed in Appendix XI the Department accept in response to a question from the Committee that in the formula in new regulation 20(3)(b) (as substituted by regulation 15(b)) the factor "S" in the formula should read "U". They say that amending regulations will be made shortly. The Committee reports new regulation 20(3)(b) for defective drafting, acknowledged by the Department.


 
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