Joint Committee on Statutory Instruments Twenty-Fourth Report



TWENTY-FOURTH 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.

ACT OF SEDERUNT (RULES OF THE COURT OF SESSION AMENDMENT NO. 5) (MISCELLANEOUS) 1999 (S.I. 1999/1386)

  2. The Committee draws the special attention of both Houses to these Rules on the grounds that they are defectively drafted in two places.

  3. Paragraph 2(2)(b) of this instrument adds a new rule 1.4 to the Rules of the Court of Session 1994. The Lord President's Private Office accept, in response to a question from the Committee, that as there was already a rule 1.4 the new rule should have been numbered 1.5 (memorandum printed in Appendix I). The Committee reports paragraph 2(2)(b) of the present instrument for defective drafting, acknowledged by the Department.

  4. Paragraph 2(3) of the present instrument makes amendments to rule 3.6A of the 1994 Rules. However, there was no such rule in the original 1994 Rules, and there is no footnote in this instrument indicating the prior instrument which added rule 3.6A. The Department explain that the prior instrument which added rule 3.6A to the 1994 Rules is the Act of Sederunt (Rules of the Court of Session Amendment No. 2) (Miscellaneous) 1998 (S.I. 1998/2637), and that the present instrument corrects a mistake made in the 1998 instrument. The Department accept that the prior instrument should have been recorded in a footnote. The Committee reports this instrument for defective drafting of the footnotes, acknowledged by the Department.



ACT OF SEDERUNT (DEVOLUTION ISSUES RULES) 1999 (S.I. 1999/1345)

ACT OF ADJOURNAL (DEVOLUTION ISSUES RULES) 1999 (S.I. 1999/1346)

ACT OF SEDERUNT (PROCEEDINGS FOR DETERMINATION OF DEVOLUTION ISSUES RULES) 1999 (S.I. 1999/1347)

ACT OF SEDERUNT (RULES OF THE COURT OF SESSION AMENDMENT NO. 5) (MISCELLANEOUS) 1999 (S.I. 1999/1386)

ACT OF ADJOURNAL (CRIMINAL PROCEDURE RULES AMENDMENT NO. 3) 1999 (S.I. 1999/1387)

  5. The Committee draws the special attention of both Houses to these five instruments on the ground that there was an unjustifiable delay in sending copies of them to the Committee.

  6. S.I.'s 1999/1345-1347 were made on 4 May and came into force on 6 May, and S.I.'s 1999/1386 and 1387 were made on 14 May and came into force on 19 May (as respects most of its provisions in the case of S.I. 1999/1386). However, the Clerk to the Committee did not receive any of the instruments until 2 June. The Committee asked the Lord President's Private Office to explain this delay and, why (particularly in view of the coming into force dates) signature copies were not supplied earlier. In the memorandum printed in Appendix II the Department explain as regards S.I.'s 1999/1345-1347 that there were delays in the printing of the instruments, and that if these had been anticipated then they would have provided the Committee with signature copies of the instruments. The Department apologise that signature copies of S.I.'s 1999/1386 and 1387 were not supplied to the Committee. The Committee reports these instruments on the grounds that there was an unjustifiable delay in providing the JCSI with copies of the instruments.



ARMY TERMS OF SERVICE (AMENDMENT) REGULATIONS 1999 (S.I. 1999/1610)

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

  8. These Regulations amend the Army Terms of Service Regulations 1992 (S.I. 1992/1365). Given the policy intention of replacing the existing provisions of the 1992 Regulations as to the right of a recruit to determine his notice (regulation 7) by the new provisions "substituted" by regulation 2(3) of the present Regulations, the Committee asked the Ministry of Defence to explain why the new provisions are contained in a regulation numbered 7A (and not 7). The Department say in the memorandum printed in Appendix III that by virtue of regulation 3 of the present Regulations, the existing provisions in regulation 7 will continue to apply in respect of individuals recruited before 1 July 1999, and that there will therefore be a short period of time during which some recruits have rights under the existing provisions and others have rights under the new provisions. The new provisions were included in a regulation numbered 7A in order to avoid confusion. This appears to the Committee to confuse the two proper drafting options available in this situation. Short-term overlap can be dealt with by substituting the new regulation for the old, with a temporary saving for the old provision. Longer-term overlap can be dealt with by the insertion of a new regulation, alongside the old one, without a saving. The Department's approach in this case has mixed up the two: the "substituted" regulation should have been numbered 7; and the Committee accordingly reports that regulation 2(3) is defectively drafted.



NATIONAL CRIME SQUAD (COMPLAINTS) (AMENDMENT) REGULATIONS 1999(S.I. 1999/1266)

NCIS (COMPLAINTS) (AMENDMENT) REGULATIONS 1999 (S.I. 1999/1273)

  9. The Committee draws the special attention of both Houses to these Regulations on the ground that they contain unjustified legislation by reference and that they are defectively drafted.

  10. These two sets of Regulations are made under the Police Act 1997 and lay down the procedures for dealing with complaints against policemen seconded to the NCS and the NCSIS ("the two Services"). They each do so by adding to the 1998 senior officer Regulations a new Part III consisting of regulations 18 to 28. Regulation 28 says that "Where the Secretary of State makes regulations under section 81 of the Police Act 1996 as to the [complaints] procedure ... to be followed [under that Act] then the procedures provided for by those regulations shall be the procedures to be followed under this Part of these Regulations with the following modifications ...". The statutory background is that the Police and Criminal Evidence Act 1984 contained the original statutory regime for handling complaints against members of the police forces: the sections of Part IX constitute the main provisions, to be supplemented (as to details) by regulations under section 99. Such regulations were made in S.I. 1985/520 and others. The Police Act 1996 consolidated the police legislation including the above 1984 Act complaints provisions: section 81 re-enacts the 1984 section 99 power to make regulations; and Schedule 8 paragraph 1(2) treats the 1984 section 99 regulations as made under section 81. No regulations have yet been made under section 81. The Police Act 1997 created the two Services and, by sections 39 and 83, requires the Secretary of State to make regulations for the handling of complaints against members of the Services: so far as he thinks desirable, the complaints procedures in the regulations are to be similar to the procedures contained in the 1996 Act. The present Regulations are made under sections 39 and 83.

  11. The Committee was concerned that regulation 28 of each instrument might constitute an unjustified piece of legislation by reference; and even if it was justified, that the drafting might not be effective to achieve its purpose. The Committee therefore asked the Home Office two sets of questions about regulation 28. First, the Committee asked whether the section 81 regulations would take the place of the preceding regulations 18 to 27. The Department reply in the first memorandum printed in Appendix IV that the section 81 regulations were intended only to supplement regulations 18 to 27 (it was further explained that no regulations have in fact been made under section 81 of the 1996 Act and that the regulations being applied by regulation 28 were the regulations made under the 1984 Act continued by the 1996 Act). The Committee then asked why the regulation provisions were not set out in the new Part V (instead of being attracted with modifications); what provision of Schedule 8 to the 1996 Act had the effect of attracting the 1984 Act regulations; and why regulation 28 did not refer to the existing regulations under the 1984 Act power (section 99) as well as any that might be made under section 81 of the 1996 Act. The Department's second memorandum, also printed in Appendix IV, says in answer to the first question that legislating by reference was considered preferable because of the number of 1984 Act regulations concerned, the varying Parliamentary procedures applicable, and the convenience of the specified modifications in showing the differences between the standard procedures and those applicable to NCS and NCIS. In response to the second question they state that the 1984 Act regulations under its section 99 are (despite the reference to section 81 of the 1996 Act) attracted through the operation of subparagraphs (2) and (3)(a) of paragraph 1 of Schedule 8 to the 1996 Act. They say in answer to the final question that it was considered preferable not to refer (directly) to the (existing) 1984 Act regulations because they will be replaced by regulations under the section 81 which is referred to in regulation 28.

  12. The Committee does not find the Department's three justifications convincing: that relating to diverse Parliamentary procedures is irrelevant to these two instruments under their own 1997 Act powers; the number (five) of earlier regulations might be thought to make it less desirable to send the reader to them, especially with the not-inconsiderable number of modifications he must mentally read into them (including working out equivalencies of provisions); and it cannot be right to refer to expected regulations instead of regulations that are law now. In relation to the question of whether referring to regulations under section 81 is effective to pick up the 1985 regulations under section 99 of the 1984 Act, of the two subparagraphs of paragraph 1 of Schedule 8 to the 1996 Act, subparagraph (2) merely treats the 1985 regulations as made under section 81 of the 1996 Act: it does nothing to the reference in regulation 28 to section 81, and subparagraph (3), though it translates references to the earlier police legislation in other legislation, only applies to other legislation in existence in 1996, not to post-1996 legislation—that would be expected to be drafted by reference to the law consolidated in the 1996 Act. Accordingly, each regulation 28 is ineffective in drafting terms to attract into the new Parts V the provisions of the only existing supplementing regulations which it is intended should form part of the complaints procedures in the new Part V. The Committee therefore reports regulation 28 of each instrument as being an unjustified piece of legislation by reference and defectively drafted.



OLIVE OIL (DESIGNATIONS OF ORIGIN) REGULATIONS 1999 (S.I. 1999/1513)

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

  14. These Regulations provide for the enforcement and execution of Commission Regulation (EC) 2815/98 (as amended). Regulation 2(3) provides that "any other expression used in these Regulations and in [EC] Regulation 2815/98 has, in so far as the context admits, the same meaning as it has in that Regulation". The Committee asked the Ministry of Agriculture, Fisheries and Food to identify these other expressions and to explain, in each case, the need for the qualification in the underlined words. The Department reply in the memorandum printed in Appendix V that the expressions are intended to be those which are not expressly defined but which appear to be terms of art, in particular (as an example) "designation of origin", and the qualification for the context seeks to ensure that, if one or more of the relevant expressions bears more than one meaning in the Community instrument, the contextually appropriate meaning is applied to the Regulations. In the Committee's view, the qualification is unnecessary, as even without it the reader will still adopt the meaning in the Commission Regulation appropriate to the context in these Regulations. To take the example and regulation 4(1), "designation of origin" juxtaposed with "bears" in the opening words clearly indicates the origin mark dealt with in Article 2 of the Commission Regulation; whereas "designation of origin" juxtaposed with Article 2 and with Article 3 in paragraph (b) equally clearly means the origin mark where the contravention in question is of Article 2 and the act of designating the oil's origin where the contravention in question is of Article 3 (or the noun use of the verb according to the contravention of Article 3 that is in question). The Committee therefore reports regulation 2(3) for defective drafting because the underlined words are unnecessary.



NATURAL MINERAL WATER, SPRING WATER AND BOTTLED DRINKING WATER REGULATIONS 1999 (S.I. 1999/1540)

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

  16. These Regulations implement Council Directives 80/777/EEC on mineral water and 80/778/EEC on water intended for human consumption. Similarly to S.I. 1999/1513, considered above, regulation 2(2) of this instrument provides that "other expressions used both in these Regulations and in Council Directive 80/777 or 80/778 have, in so far as the context admits, the same meaning in these Regulations as they bear in that Directive". The Committee therefore asked the Ministry of Agriculture, Fisheries and Food to explain which exceptions make this qualification necessary. The Department say in the memorandum printed in Appendix VII that the qualification covers such expressions used in Council Directive 80/777 or 80/778 and in these Regulations as would otherwise lead to the wrong meaning in the Regulations. The Department cites "Regulations", which occurs in regulation 1 in the words "These Regulations may be cited" and is used in Article 18.1 of Council Directive 80/778 in the Community law sense. As with S.I. 1999/1513, the qualification is in fact unnecessary, as even without it the 'domestic' meaning could not be in doubt. The Committee reports regulation 2(2) 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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