Joint Committee on Statutory Instruments Twenty-Fifth Report



TWENTY-FIFTH 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 Ministry of Agriculture, Fisheries and Food in connection with the Animal Feedingstuffs from Belgium (Control) Regulations 1999 (S.I. 1999/1543) and the Animal Feedingstuffs from Belgium (Control) (Amendment) Regulations 1999 (S.I. 1999/1764) is printed in Appendix I to this Report.

  3. A memorandum by the Department of Social Security in connection with the Social Security and Child Support (Decisions and Appeals) Amendment (No. 2) Regulations 1999 (S.I. 1999/1623) Social Security and Child Support (Decisions and Appeals) Amendment (No. 3) Regulations 1999 (S.I. 1999/1670) is printed in Appendix II to this Report.

  4. A memorandum by the Department of the Environment, Transport and the Regions in connection with the Energy Information (Dishwashers) Regulations 1999 (S.I. 1999/1676) is printed in Appendix III to this Report.



FEEDING STUFFS (AMENDMENT) REGULATIONS 1999 (S.I. 1999/1528)

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

  6. This instrument amends the Feeding Stuffs Regulations 1995 (S.I. 1999/1412). New regulation 15(3) and (4) (as substituted by regulation 4) imposes a prohibition against putting into circulation certain specified feed material which contains any specified substance in excess of the specified maximum content. In both provisions the prohibition extends to (a) phosphates containing cadmium or arsenic in excess of the specified maximum, and (b) citrus pulp containing dioxin in excess of the specified maximum. The maximum proportion content specified for the substances in question (cadmium, arsenic and dioxin) is the same for both provisions. However, the prohibition in regulation 15(3) is absolute, while that in regulation 15(4) is qualified in that the specified maximum can be exceeded if the material goes to an approved destination for processing and is accompanied by a document containing certain information. Given this apparent overlap or conflict between the two provisions, the Committee asked the Ministry of Agriculture, Fisheries and Food to explain the effect of regulation 15(3) and (4). In the memorandum printed in Appendix IV the Department give three examples of how the rules in regulation 15(3) and (4) work. The final example relates to one of the substances mentioned in the Committee's question (phosphates containing cadmium), and states that regulation 15(3) specifies an absolute proportion limit of 10 mg/kg, and regulation 15(4) specifies a proportion limit of 10 mg/kg, subject to the qualification that the limit can be exceeded if the material goes to an approved destination for processing. It therefore follows, states the memorandum, that phosphates with more than 10 mg/kg cadmium in them cannot be put into circulation, whether to an approved destination for processing or to any other destination.

  7. The Committee does not, however, think that regulation 15(3) and (4) successfully puts into effect the intention expressed in the previous sentence. Given that regulation 15(3) imposes an absolute prohibition, and regulation 15(4) a qualified prohibition, against putting into circulation phosphates containing cadmium in excess of the specified limit, it does not follow that the absolute prohibition prevails. What follows is that there is a conflict between regulation 15(3) and (4), and that the intended policy that phosphates containing more than the specified maximum limit of cadmium cannot be put into circulation at all has not been implemented satisfactorily. Indeed, a possible interpretation of the two provisions (which would produce an unintended result) is that the absolute prohibition in regulation 15(3) does not apply (in a 15(4) case) where the material goes to an approved destination for processing; in the latter case, the limit can be exceeded. This also applies, mutatis mutandis, to the two other examples mentioned in the Committee's question. The Committee reports regulation 15(3) and (4) for defective drafting, and trusts that the Department will take this into account in their forthcoming consolidation of the 1995 Regulations.



FOUNDATION BODY REGULATIONS 1999 (S.I. 1999/1502)

  8. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are in one respect ultra vires and in another respect defectively drafted.

  9. These Regulations are made under the power in section 21(5) of the School Standards and Framework Act 1998 to make provision for and in connection with the establishment, membership and functions of foundation bodies and the steps to be taken in connection with schools joining a group of schools for which a foundation body acts. Subsection (6)(g) enables regulations under subsection (5) to authorise the Secretary of State to dissolve a foundation body by means of an order, but regulations 5(2) and 8(5) of this instrument purport to authorise him to dissolve a foundation body simply by notice in writing. In response to a question by the Committee the Department for Education and Employment accept that the regulations should have provided for the dissolution of a foundation body to be by order of the Secretary of State (first memorandum printed in Appendix V). They say that the necessary corrections will be made to the regulations, and that the Secretary of State will not dissolve a foundation body until the necessary amending Regulations are in place. The Committee reports regulations 5(2) and 8(5) on the grounds that they are ultra vires, acknowledged by the Department.

  10. Regulation 2(1)(a) provides that "a school may only form part of a group" if the school falls into certain categories. In the second memorandum printed in Appendix V the Department agree with the Committee that the intention of the sub-paragraph would have been better expressed if it read "a school may only take steps to form part of a group". The Committee reports regulation 2(1)(a) for defective drafting, acknowledged by the Department.



MAGISTRATES' COURTS COMMITTEES (HEREFORD AND WORCESTER AND SHROPSHIRE) AMALGAMATION ORDER 1999 (S.I. 1999/1705)

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

  12. Paragraph 3(1) of the Schedule imposes a duty on the transferor committees to appoint a clerk designate "as soon as reasonably practicable after the coming into force of this Order and in any event not later than the day before the first appointed day". However, for the purpose of this provision the Order comes into force on 12 July 1999 and "the first appointed day" is defined as 12 July 1999 "or such earlier day as the transferor committees shall appoint". The Committee asked the Lord Chancellor's Department to explain how the duty to make the appointment can arise to as to make the appointment have effect prior to 12 July 1999. A corresponding question was asked about paragraph 4(3) of the Schedule. The Department reply in the memorandum printed in Appendix VI that the coming into force date should have been 5 July 1999, with an appointed day of 12 July, but that 12 July was inserted as the coming into force date in error. In view of the erroneous coming into force date for the purposes of article 5 and the Schedule, the Committee reports article 1 as, in that respect, defectively drafted, as 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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