Joint Committee on Statutory Instruments Twenty-Ninth Report


TWENTY-NINTH 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.

PRESSURE EQUIPMENT REGULATIONS (S.I.1999/2001)

  2. The Committee draws the special attention of both Houses to these regulations on the ground that two provisions require elucidation, provided in the Memorandum from the Department of Trade and Industry printed in Appendix 1; and on the ground that, in one place, the regulations are defectively drafted.

  3. Regulation 11 provides that for the purposes of Regulations 7, 8 or 9, pressure equipment or an assembly is not to be regarded as being "placed on the market" in certain circumstances. Given that Regulation 7, 8 and 9 impose a prohibition not only on placing the specified equipment or assembly on the market but also on putting it into service, the Committee asked the Department why the exceptions in the opening part of Regulation 11 do not extend to a case where the equipment or assembly is put into service. The Department indicated that it was necessary, in order properly to implement Community Directive 97/23/EC, that there could be no exceptions to the activity of putting into service in the Community. Those exceptions in the case of placing on the market or supply were necessary to reflect circumstances under which equipment was not destined for a Community market, for example, where it was intended for re-export or for exhibition at trade fairs. The Committee reports regulation 11 on the ground that it requires the elucidation provided by the memorandum.

  4. Regulation 20 (4) (c) provides that a notified body or recognised third-party organisation shall not be required to carry out the specified functions if the body reasonably believes that, having regard to the number of outstanding applications, it will be unable to commence the required work within three months of receiving the application. The Committee asked the Department whether it was intended that the functions of the body, in relation to applications outstanding, would be suspended for that three month period or that they would cease. If it were to be the latter, the Committee asked what the effect would be on outstanding applications. The Department state that the intended effect of the provision is that the body or organisation would be relieved from carrying out the specified monitoring functions altogether in relation to applications which it has not accepted, but would have to carry out those functions in relation to applications which it has already accepted. If an application is not accepted by the body or organisation, it would be for the applicant to have the monitoring functions carried out by another body. The Committee reports regulation 20(4)(c) on the ground that it requires the elucidation provided in the Department's memorandum.

  5. Thirdly, the Committee asked the Department to explain the reference, in paragraph 2(d) of Schedule 8, to sub-paragraph (b) of that paragraph. The Department acknowledge that this reference should have been a reference to sub-paragraph (c) of paragraph 2 of that Schedule. The Committee reports the provision for defective drafting, acknowledged by the Department.

TELECOMMUNICATIONS (DATA PROTECTION AND PRIVACY)

   REGULATIONS 1999 (S.I. 1999/2093)

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

  7. Regulation 2(3) provides that expressions used in both the Regulations and the Directive are to have the same meaning in the Regulations as they have in the Directive, except where the context otherwise requires. The Committee asked the Department of Trade and Industry to explain the reasons underlying this exception.

  8. In a memorandum printed in Appendix 2, the Department state that they had failed to take account of the Committee's Eighth Report, Session 1998-99, on S.I. 1998/3170, in which the Committee drew attention to a similar error. The Department accept that the words ought not to have been included in paragraph (3) and that (in line with that Report) other words of saving should have been included in paragraph (4).

MERCHANT SHIPPING (MARINE EQUIPMENT) REGULATIONS 1999

   (S.I.1999/1957)

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

  10. Regulation 23(3) prescribes the penalty for an offence under regulation 19(4). Since no regulation is numbered 19(4), the Committee asked the Department of the Environment, Transport and the Regions to explain this reference. In the memorandum printed in Appendix 3 the Department acknowledged that the reference to regulation 19(4) is an error which will be corrected at the next suitable opportunity. The Committee reports the regulation 23(3) for defective drafting acknowledged by the Department.

AIR NAVIGATION (FIFTH AMENDMENT) ORDER 1999 (S.I.1999/2059).

  11. The Committee draws the special attention of both Houses to this Order on the grounds that it is defectively drafted in two places and that its Explanatory Note is misleading.

  12. New article 22D(3)(b) (inserted by article 3(5)) provides for the suspension of a medical certificate upon "the elapse" of a period of illness. The Committee drew the Department's attention to its Third Report (Session 1995-96) on S.I. 1995/1970 in which a similar provision had been reported for defective drafting on the ground that "it is plainly a misuse of elapse to use it as a noun. The correct noun to use in this context is 'expiry'.". The Department (in their memorandum printed in Appendix 4) apologise for having failed to make this change, and indicate that they will do so in the consolidation which is in preparation. The Committee reports new article 22D(3)(b) for defective drafting, acknowledged by the Department.

  13. The Department also accept that, in paragraph 5 of Part C (Section 1) of new Schedule 8, the reference to article 22C should be a reference to article 22(A)(2). The Committee reports the provision for defective drafting, acknowledged by the Department.

  14. Finally, the Committee asked the Department whether paragraph (20) of the explanatory note, explaining the new offence in Article 59A (headed "Acting in a Disruptive Manner") ought not to have been confined, in its words of description, to the ingredients of the offence as specified in that Article, without inferring disruptive acts generally. The Department explain that, in the interests of brevity, paragraph (20) avoided excessive detail. However, the Committee considers that the result is that the paragraph provides a misleading description of the specific offence created by article 59A, and accordingly reports the Order on the ground that its Explanatory Note is misleading.

QUARRIES REGULATIONS 1999 (S.I. 1999/2024)

  15. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted in several respects and contain unjustified referential legislation.

  16. Regulation 2(1) defines "explosives" as meaning explosive articles or explosive substances as defined in the Classification and Labelling of Explosives Regulations 1983. In a memorandum printed in Appendix 5, the Department of the Environment, Transport and the Regions accept that that provision, instead of referring the reader to the 1983 Regulations, should have set out those definitions; and they undertake to make the necessary amendments when a suitable opportunity arises. The Committee reports regulation 2(1) on the ground that it contains unnecessarily referential legislation.

  17. Regulation 33(1)(c) requires a geotechnical assessment to include, where appropriate, the conclusion of the geotechnical specialist as to whether any remedial work is required and the date by which such work should be completed. On the other hand, regulation 33(4) requires the operator to ensure that any remedial works identified in accordance with regulation 33(1)(c) are undertaken by the date specified. The Department state that no difference of meaning was intended between th two (underlined) words, and that the word "undertaken" in regulation 33(4) should (consistently with regulation 33(1)(c)) have read "completed". They undertake to make the necessary amendment when a suitable opportunity arises. The Committee reports regulation 33(4) for defective drafting, acknowledged by the Department.

  18. The Department also acknowledge that the reference, in regulation 45(4), to paragraph (2) should have been to paragraph (3). The Committee reports regulation 45(4) for defective drafting, acknowledged by the Department.

MERCHANT SHIPPING (REPORTING REQUIREMENTS FOR SHIPS CARRYING

DANGEROUS OR POLLUTING GOODS)(AMENDMENT) REGULATIONS 1999

  (S.I. 1999/2121)

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

  20. New paragraph (4B)(b) of regulation 15 of the principal Regulations (inserted by regulation 8(c)) provides for a fine "not exceeding the statutory maximum" in respect of an offence. Since this offence is triable only summarily, the Committee asked the Department to explain why the fine is not described as one "not exceeding level 5 on the standard scale". In the memorandum printed in Appendix 6, the Department accept that the fine should be so described, and indicate that they will amend the provision at the next suitable opportunity. The Committee reports the provision for defective drafting, acknowledged by the Department.

ENVIRONMENTALLY SENSITIVE AREAS (BLACKDOWN HILLS)

DESIGNATION (AMENDMENT) ORDER 1999 (S.I. 1999/2233).

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

  22. New Schedule 2 to the principal Order (as set out in Schedule 2 to this Order) specifies, in item 10, a maximum rate of payment for hedge and hedgebank restoration of £"11". As the heading of the column in which this amount is specified state that the rates are the "Maximum rate of payment in £ per hectare of land per annum (except where otherwise stated)", the Committee asked the Ministry of Agriculture, Fisheries and Food whether the rate in respect of item 10 should have expressed as a rate "per metre" (as in the case of similar entries in other instruments). In the memorandum printed in Appendix 7, the Ministry accept that the rate should have been expressed "per metre" as suggested by the Committee, and state that the Order will be amended at the next opportunity. The Committee reports new Schedule 2 to the principal Order for defective drafting, acknowledged by the Department.

ENVIRONMENTALLY SENSITIVE AREAS (DARTMOOR)

DESIGNATION (AMENDMENT) ORDER (S.I. 1999/2236)

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

  24. Regulation 9(b) purports to revoke Schedule 5 to the principal Order. The Committee asked the Ministry of Agriculture, Fisheries and Food why this provision was included, given that that Schedule had already been revoked by article 2(6) of S.I. 1996/2110. In the memorandum printed in Appendix 8 the Department accept that this was a mistake and have undertaken to amend the Order at the next opportunity. The Committee reports regulation 9(b) for defective drafting, acknowledged by the Department.

  25. The Committee also asked the Department why, in new Schedule 2 to the principal Order (as set out in Schedule 2) to this Order, item 1 of Part II refers to "species"-rich hay meadows without giving any specific indication of the type of management activity contemplated. The Department accept that this too was an error and that the entry should have read "Management of species-rich hay meadows" and indicate that this error will be corrected at the next opportunity. The Committee reports new Schedule 2 to the principal Order for defective drafting, acknowledged by the Department.

  


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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