Joint Committee on Statutory Instruments Thirtieth Report


THIRTIETH 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 from the Lord Chancellor's Department in connection with the Land Registration Fees Order 1999 (S.I. 1999/2254) is printed in Appendix 1 to this report.

  3. A Memorandum from the Lord Chancellor's Department in connection with the Court of Protection (Enduring Powers of Attorney) (Amendment) Rules 1999 (S.I. 1999/2505) is printed in Appendix 2 to this report.

  4. A Memorandum from the Ministry of Agriculture, Fisheries and Food in connection with the Agricultural Holdings (Units of Production) (England) Order 1999 (S.I. 1999/2230) is printed in Appendix 3 to this report.

MAGISTRATES' COURTS COMMITTEES (GREATER MANCHESTER) AMALGAMATION ORDER 1999 (S.I. 1999/2426).

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

  6. The purpose of this Order is to provide for the replacement of a number of Magistrates' Courts Committee with a single Committee, to be known as the Greater Manchester Magistrates' Courts Committee. The Committee asked the Lord Chancellor's Department to explain how the provisions of the schedule to the Order, where they apply (with modifications) or disapply the Constitution Regulations (defined in paragraph 1) of the schedule as the Regulations of 1994, will operate given that the 1994 Regulations have been revoked and replaced by S.I. 1999/2395 (the new Constitution Regulations).

  7. The Lord Chancellor's Department explain, in the Memorandum printed in Appendix 4, that the Order was made on the 26th August 1999 whereas the new Constitution Regulations were made five days later and it was accordingly impossible to draft the Amalgamation Order in such a way as to refer to the new Constitution Regulations. The Memorandum explains that, under section 17(2)(a) of the Interpretation Act 1978, which provides that an Act which repeals or re-enacts a previous enactment, references to the enactment so repealed are to be construed as references to the provision re-enacted. Section 23 of the same Act provides that these provisions generally apply to subordinate legislation as well. The Department accordingly relied on the provisions of the Interpretation Act in this case.

  8. The Committee accepts that, as a matter of drafting practice, it is proper to rely upon the above provisions of the Interpretation Act in such situations. The Committee also accept that readers of the Order will face no substantial difficulty in identifying the corresponding new Regulations. The Committee nevertheless reports the Order, for the elucidation provided in the Memorandum, because, in the Committee's view, it would have been better had the Department drafted the Order in terms of the new Regulations. In the Committee's view, it would have been possible to do so (with any necessary transitional adaptations) in the timetable outlined by the Department thus making this Order readily comprehensible to the reader.

EDUCATION (CHANGE OF CATEGORY OF MAINTAINED SCHOOLS) (ENGLAND) REGULATIONS 1999 (S.I. 1999/2259)

  9. The Committee draws the special attention of both Houses to the above regulations on the ground that they are defectively drafted, as acknowledged in the Memorandum from the Department for Education and Employment printed in Appendix 5.

  10. Regulation 6 (2) (c) deals with voting on any decision of a school organisation committee in relation to consent "under paragraph 8 of the modified schedule 6 to the Act to the withdrawal of proposals". The Committee asked the Deparment to identify the provision, given that paragraph 8 relates to schools in Wales. The Memorandum admits the error and indicates that the reference should have been to paragraph 3 (8).

EDUCATION (STUDENT SUPPORT) (DANCE AND DRAMA) REGULATIONS 1999 (S.I. 1999/2263).

 EDUCATION (STUDENT SUPPORT) (EUROPEAN INSTITUTIONS) REGULATIONS 1999 (S.I. 1999/2270).

  11. The Committee drawns the special attention of both Houses to the above two Regulations on the ground that they make unexpected use of the power under which they are made.

  12. Both Regulations are made under section 22 of the Teaching and Higher Education Act 1998 and provide for grants to be made to students in connection with attendance at certain higher education institutions and courses. In both cases, Regulation 3 (2) of the Regulations imposes a limit on the number of students eligible for support in each twelve-month period. The Committee asked the Department for Education and Employment what provision of section 22 of the 1998 Act authorises the imposition of such limit. In the Memoranda printed in Appendix 6, the Department cited section 22 (1) of the Act as follows: "Regulations shall make provision authorising or requiring the Secretary of State to make grants or loans". It was the Department's view that these words allowed the support to be either mandatory or discretionary and that the Regulations may accordingly confer on the Secretary of State a discretion to provide support by way of grants and loans to some students on a particular course or at a particular institution, but not to all such students. They inferred from this that Regulations may authorise the Secretary of State to provide support to a specified number of eligible students and indicated that discretion must be exercised by reference to merit, as set out in regulation 3 of the Regulations.

  13. The Committee considered carefully whether these limbs of the Department's explanation satisfactorily followed in logic. The Committee considered in particular whether the word "authorise" in the Act, if it did indeed provide a discretion, was also sufficient to allow the imposition of a limit on numbers. It is the Committee's view that the Department's explanation overlooks the structure and wording of the section under which the Regulations are made. Section 22 clearly contemplates both eligible students and designated courses; and, given the designated courses and the criteria for eligibility, the section provides that grant either shall or may be given. The Committee accordingly questioned whether the power authorised the imposition of a limit on numbers as an aspect of eligibility. In the Committee's view it is plain from subsection 2(a) that eligibility is a criterion referable to the individual student. A limit on numbers is an extraneous factor, as it is not related to an individual student.

  14. It is the Committee's view that, had the Regulations assumed the determination of who is an eligible student without reference to a limit and accordingly authorised the Secretary of State to make grant on that basis, it would have been proper for the Secretary of State's discretion to be exercised by reference to student numbers and, therefore, their aggregate cost to public funds. Because the Regulations are, however, framed instead by incorporating a limit into the determination of eligibilty they do, in the Committee's view, make an unexpected use of the power.

EDUCATION (TRANSITION TO NEW FRAMEWORK) (MISCELLANEOUS PROVISIONS) REGULATIONS 1999 (S.I. 1999/2267)

  15. The Committee draws the special attention of both Houses to these Regulations on the ground that they are in two places defectively drafted, as acknowledged in the Memorandum from the Department for Education and Employment printed in Appendix 7.

  16. The Committee asked the Department which provisions of the 1989 Regulations containing a definition of "Maintained School" were to be replaced by the new definition in Regulation 7 (a). The Department indicate that the reference is to Regulation 2 of the Education (National Curriculum) (Temporary Exceptions for Individual Pupils) Regulations 1989 (S.I. 1989/1181).

  17. The Committee also asked the Department to explain the reference, in Regulation 10 (2), to "a determination for the purposes of Section 56 (2) of the 1998 Act", notice of which has been given "under sub-section 4 (of that section)". The Department admitted that the reference should have been to sub-section (3). The Department has undertaken to amend to correct these two errors.

MERCHANT SHIPPING AND FISHING VESSELS (PERSONAL PROTECTIVE EQUIPMENT) REGULATIONS 1999 (S.I. 1999/2205).

  18. The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted as admitted by the Department of the Environment, Transport and the Regions in the Memorandum printed in Appendix 8.

  19. The Committee asked the Department why Regulation 3 (2) applies (among others) Regulation 2 (Interpretation) to non-United Kingdom ships while in United Kingdom waters, given that Regulation 2 itself applies for all purposes. The Department accept that this provision is unncessary.


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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