Joint Committee on Statutory Instruments Nineteenth Report


NINETEENTH 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 Lord Chancellor's Department in connection with the Civil Procedure (Amendment) Rules 1999 (S.I. 1999/1008) is printed in Appendix I to this Report.

  3. A memorandum by the Scottish Office in connection with the Confiscation of the Proceeds of Crime (Designated Countries and Territories) (Scotland) Order 1999 (S.I. 1999/673) is printed in Appendix II to this Report.

  4. A memorandum by the Department of Trade and Industry in connection with the Federal Republic of Yugoslavia (Supply, Sale and Export of Petroleum and Petroleum Products) (Penalties and Licences) Regulations 1999 (S.I. 1999/1261) is printed in Appendix III to this Report.

NON-ROAD MOBILE MACHINERY (EMISSION OF GASEOUS AND PARTICULATE POLLUTANTS) REGULATIONS 1999 (S.I. 1999/1053)

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

  6. Regulation 2(1)(c) defines "non-road mobile machinery" as machinery (etc) "in which an ... engine ... is installed". The Committee asked the Department of Trade and Industry to explain how this definition is consistent with regulation 3(1), which makes the Regulations applicable to new engines "to be installed in non-road mobile machinery", and regulation 4(1), which can restrict the placing on the market of any new engine, "whether or not already installed" in machinery. The Department's response, printed in Appendix IV, fails to answer the point that it should be possible—but is not—to read the definition of "non-road mobile machinery" into regulations 3(1) and 4(1) without inconsistency with the context. For example, regulation 3(1) provides that the Regulations apply to new engines to be installed in non-road mobile machinery which—according to the definition in regulation 2(1)—already has an engine installed in it. The defect could have been avoided if, for example, the definition had included the words "or is to be" before "installed". The Committee reports regulation 2(1) for defective drafting.

RURAL DIVERSIFICATION PROGRAMME (SCOTLAND) AMENDMENT REGULATIONS 1999 (S.I. 1999/651)

  7. The Committee draws the special attention of both Houses to these Regulations on the ground that their Explanatory Note is incomplete.

  8. The Explanatory Note to the Regulations fails to specify the Community obligations implemented by them, as required by paragraph 2.101 of Statutory Instrument Practice. In the memorandum printed in Appendix V the Scottish Office list the instruments which are being implemented, and apologise for the omission. The Committee reports the Explanatory Note to the Regulations as being incomplete, acknowledged by the Department.

LOCAL AUTHORITIES' TRAFFIC ORDERS (PROCEDURE) (SCOTLAND) REGULATIONS 1999 (S.I. 1999/614)

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

  10. The Scottish Office accept, in response to a question by the Committee, that regulation 21 ought to refer to "regulation 4 of the 1997 Regulations", not simply to "regulation 4", which implies that it is regulation 4 of these regulations that is being referred to (memorandum printed in Appendix VI). The Department also accept that that the reference in regulation 21 to regulation 1(2) should be to regulation 22. They say that they will amend regulation 21 at the earliest opportunity. The Committee reports regulation 21 for defective drafting, acknowledged by the Department.

SCOTTISH LOCAL ELECTIONS AMENDMENT RULES 1999 (S.I. 1999/406)

SCOTTISH LOCAL ELECTIONS AMENDMENT (NO. 2) RULES 1999 (S.I. 1999/492)

  11. The Committee draws the special attention of both Houses to these Rules on the grounds that there was an unjustifiable delay in sending both instruments to the Committee, and that in the case of S.I. 1999/406 there was an unjustifiable delay in sending the necessary notification to the Statutory Instruments Reference Committee.

  12. S.I. 1999/406 and S.I. 1999/492 were laid before Parliament on 22 February and 2 March respectively, but were not sent to this Committee until mid-April. In the memorandum printed in Appendix VII, the Scottish Office explain that the delay was because there was a delay in obtaining printed copies from the printer. The Committee notes first that S.I. 1999/406 was never printed (as it was revoked before coming into force), and so a printing delay cannot be the reason for the late delivery of that instrument to the Committee. Second, final proof copies are often provided to the Committee when the printed version of an instrument is not available, and there is no reason why this could not have been done in this case. The Committee therefore reports that there was an unjustifiable delay in sending both instruments to the Committee.

  13. As S.I. 1999/406 was not printed, a certificate to that effect should have been sent from the Secretary of State to the Clerk of the Statutory Instruments Reference Committee, as required by the Statutory Instruments Act 1947. The Scottish Office state that this does not appear to have been done and that they have not been able to trace the certificate or a copy of it. They have arranged for a fresh certificate to be issued and sent to the Statutory Instruments Reference Committee. The Committee reports S.I. 1999/406 because there was an unjustifiable delay in sending the required notification to the Statutory Instruments Reference Committee.

ANTI-POLLUTION WORKS REGULATIONS 1999 (S.I. 1999/1006)

  14. The Committee reports the Regulations on the ground that they make an unexpectedly narrow use of the relevant powers in three respects.

  15. The Explanatory Note to the Regulations explains that they prescribe the contents of anti-pollution works notices served under section 161A of the Water Resources Act 1991, and the procedure to be followed in relation to appeals and compensation.

  16. Regulation 2(c) requires a works notice to specify the works or operations required to be carried out by the person on whom it is served. The Committee asked the Department of the Environment, Transport and the Regions why, given that section 161A(3)(a) of the 1991 Act requires a works notice to specify the periods within which the person on whom it is served is required to do each of the things specified in the notice, regulation 2 does not include a provision to this effect. The Department reply in the memorandum printed in Appendix VIII that the requirements of the Act must be complied with as well as the Regulations, and it was not thought necessary to repeat this requirement. Although this observation is true in a general sense, in the Committee's view it ignores the evident scheme of section 161A and would be equally applicable to regulation 2(c)'s provision for the notice to specify the works or operations required to be carried out. Section 161A, in subsection (2), requires a works notice to be a notice which specifies one or more of the listed works or operations as things required to be done by the person served; and, in subsection (3), requires a works notice to specify the periods within which the person served is required to do the things specified in the notice. Subsection (5) empowers the making of regulations making provision for the form and content of works notices. The works notice is clearly the crucial document. And it appears to the Committee that Parliament would have expected that document to tell the recipient of it not only what he must do but also within what time he must do it. Regulation 2(c) fulfils the expectation as regards one crucial requirement but not as regards the other. The Committee accordingly reports regulation 2(c) as making an unexpectedly narrow exercise of the power in section 161A(5) in not also requiring a works notice to specify the period within which the specified works or operations must be done.

  17. Regulation 3(2) requires that a notice of appeal to the Secretary of State against a works notice shall state the grounds of the appeal. The Committee asked what were the grounds of appeal and where were they specified, noting that section 161C, which confers the right of appeal, also (by subsection (3)(a)) empowers the making of regulations with respect to the grounds on which appeals may be made. The Department reply in their memorandum that the person served with a works notice may appeal on any grounds subject to any restrictions imposed by the regulations under subsection (3) and they give six examples. In the Committee's view, the range of grounds must be such as are relevant in the context of the part of the Act containing sections 161A to 161D. But it would be difficult for a person served with a notice to work out, without any legislative guidance, what grounds would be available to him within this implied restriction. The Committee considers that Parliament included in section 161C the power to prescribe grounds of appeal so that persons served with works notices would know where they stood as regards appealing. The Committee reports the Regulations for failing to contain provisions stating grounds of appeal.

  18. Regulation 3(4)(b) assumes that a ground of appeal is that a works notice might lawfully have been served on some other person than the recipient of it. Since section 161C(4)(d) elaborates the general power in subsection (3) to prescribe grounds of appeal by authorising the regulations to prescribe the cases in which the appellant may claim that the works notice should have been served on somebody else, the Committee asked why the power had not been exercised. The Department repeats its above answers that the grounds of appeal are not limited by the Act and that the power conferred by subsection (4)(d) is conferred for the purpose of limiting the grounds of appeal. The Committee's view is that the purpose of that power is not merely restrictive but is definitive and that Parliament conferred it in the expectation that it would be used to state what the cases are in which the appellant can make that particular claim as a ground of appeal. The Committee reports the Regulations for failing to state what these cases are.


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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