Joint Committee on Statutory Instruments Eighth Report


EIGHTH 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 for Education and Employment in connection with the European Communities (Recognition of Professional Qualifications) (Second General System) (Amendment) Regulations 1999 (S.I. 1999/67) is printed in Appendix I to this Report.

  3. A memorandum by the Department of the Environment, Transport and the Regions in connection with the Asbestos (Licensing) (Amendment) Regulations 1998 (S.I. 1998/3233) is printed in Appendix II to this Report.

LAND REGISTRATION FEES ORDER 1998 (S.I. 1998/3199)

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

  5. Articles 4(1) and 5(3) subject their provisions to Schedule 4 (exemptions) paragraph (8). In the memorandum printed in Appendix III the Lord Chancellor's Department admit that the reference should be to paragraph (9), not (8), and propose to correct the mistake at the next convenient opportunity. Accordingly the Committee reports articles 4(1) and 5(3) for defective drafting, acknowledged by the Department.

EXCHANGE OF SECURITIES (GENERAL) (AMENDMENT) RULES 1998 (S.I. 1998/2505)

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

  7. Rule 6(1) of the Exchange of Securities (General) Rules 1979 is amended by rule 5(a) of the present Rules to refer to paragraph (4) of that rule 6. HM Treasury admit in the memorandum printed in Appendix IV that the reference should actually be to the new paragraph (1A) of rule 6, and say that they will correct the reference when the Rules are next amended. The Committee reports rule 5(a) of the present Rules as being defectively drafted, acknowledged by the Department.

EDUCATION (SCHOOL PREMISES) REGULATIONS 1999 (S.I. 1999/2)

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

  9. Regulation 26(1) (Savings) refers to "the requirements of paragraph 5 of Schedule 2 to the 1996 Regulations" (playing fields). The Committee asked the Department for Education and Employment whether the reference to paragraph 2 ought to be to paragraph 3. In the memorandum printed in Appendix V the Department accept that the reference should be to paragraph 3 and say, despite the fact that in their opinion the meaning of regulation 26(1) is still clear, that they will correct the mistake the next time the Regulations are amended. The Committee reports regulation 26(1) for defective drafting, acknowledged by the Department.

TELECOMMUNICATIONS (DATA PROTECTION AND PRIVACY) (DIRECT MARKETING) REGULATIONS 1998 (S.I. 1998/3170)

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

  11. Regulation 2(2) provides that expressions used in both the Regulations and in Directive 97/66/EC shall have the same meaning in the Regulations as they do in the Directive "except where the context otherwise requires". The Committee asked the Department of Trade and Industry to explain where the context of the Regulations requires otherwise. The Department say in the memorandum printed in Appendix VI that the Directive contains a number of provisions which refer to "lines", and that in the Directive the expression is intended to mean any link over which a call is transmitted, whether or not that link is a line within the natural meaning of that expression (that is, a line in the physical sense). The Department thought it helpful to make explicit that "line" in the Regulations has the wider meaning it has in the Directive, and they point to regulation 2(3) as effecting this. The Committee do not think that this is a satisfactory explanation. If the purpose of regulation 2(3) is to ensure that "lines" has the same meaning that it does in the Directive, and not its natural meaning, then this is achieved by regulation 2(2), without the words "except where the context otherwise requires". It is by no means clear that regulation 2(3) is effective to produce this result by a different route. But, in any event, the words of exception run counter to incorporating the wider Directive meaning. If regulation 2(3) is to serve its intended purpose, it must, in drafting terms, be expressed as being without prejudice to regulation 2(2) (as a parallel provision) with no words of exception in regulation 2(2). The Committee reports regulation 2(2) and (3) for defective drafting.

  12. Regulation 4(1) provides that a consent or notification, "so long as it remains in force, shall have effect according to its tenor". The Committee asked the Department to explain the purpose and effect of, and the necessity for, the underlined words. The Department explain that the words were included to ensure that a notification only has effect until it is withdrawn or otherwise ceases to be in force. The Committee notes that no provision is made for a notification to state its duration and regards this as natural in the context, whilst also noting that words in regulations 7(4) and 9(4) ("for the time being") acknowledge that a notice can be withdrawn. In other words, there is no risk of indefinite duration. In the Committee's view, if a notification is silent about its duration, the words referring to its tenor have nothing to attach themselves to. And if a notification does contain a statement about its duration, this very statement would achieve its effect without needing a provision in the regulations giving the statement effect. The Committee reports regulation 4(1) for defective drafting.


1   The Orders of Reference of the Committee are set out in the First Report, Session 1998-99 (HL Paper 4; HC 50-i). Back


 
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