Joint Committee on Statutory Instruments Thirtieth Report



THIRTIETH REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE STATUTORY INSTRUMENTS, ETC.[1]

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 respect of the Court of Protection (Amendment) Rules 2000 (S.I. 2000/2025) is printed in Appendix 1.

3. A memorandum from the Department of Social Security in connection with six Social Security (Contributions) (Amendment) Regulations (S.I. 2000/2077, 2078, 2084, 2086, 2207 and 2208) is printed in Appendix 2.

4. A memorandum from Inland Revenue in connection with six Social Security (Contributions) (Amendment) Regulations (S.I. 2000/2077, 2078, 2084, 2086, 2207 and 2208) is printed in Appendix 3.

WATER AND SEWERAGE UNDERTAKERS (INSET APPOINTMENTS) REGULATIONS 2000 (S.I. 2000/1842)

5. The Committee draws the special attention of both Houses to the Regulations on the ground that in one respect there is doubt as to their vires.

6. Section 7(4)(bb) of the Water Industry Act 1991 permits the appointment of a company to replace a water or sewerage undertaker for particular premises, where the conditions in section 7(5) of that Act are satisfied. Section 7(5)(a) prescribes a condition relating to the quantity of water supplied, or likely to be supplied, to those premises in any period of twelve months. Section 7(6) of the Act empowers the Secretary of State to make regulations amending section 7(5)(a) by substituting a smaller quantity of water than that specified. The functions of the Secretary of State under section 7(6) have been transferred to the National Assembly for Wales in respect of undertakers whose areas are wholly or mainly in Wales.

7. Regulation 2(2) of these Regulations, made by the Secretary of State under section 7(6), substitutes a new paragraph (a) of section 7(5) in relation to England and Wales. The new paragraph (a) (in addition to a minor drafting change) retains the previously specified quantity of water, where the area of the relevant undertaker is wholly or mainly in Wales, and substitutes a smaller quantity in all other cases.

8. The Committee asked the Department of the Environment, Transport and the Regions to identify the power under which the Secretary of State, given the transfer of his functions under section 7(6) to the National Assembly for Wales, could make regulation 2(2). The Department, in its memorandum printed in Appendix 4, argues that the function transferred to the National Assembly for Wales is that of amending section 7(5)(a) by substituting a smaller quantity of water in relation to undertakers whose area is wholly or mainly in Wales, and that since the quantity of water in relation to those undertakers is unchanged the Secretary of State had power to make regulation 2(2), notwithstanding that the substituted section 7(5)(a) extends to both England and Wales.

9. The Committee does not accept the Department's argument. The only function of the Secretary of State under section 7(6) is to make regulations amending paragraph (a) of section 7(5) by substituting a smaller quantity of water than that specified. This function has been transferred to the national Assembly for Wales. In the Committee's view there is no remaining power under that provision which can be exercised by the Secretary of State in relation to undertakers whose areas are wholly or mainly in Wales. The Committee therefore reports regulation 2(2) as being of doubtful vires.

SOCIAL SECURITY (WORK-FOCUSED INTERVIEWS FOR LONE PARENTS) AND MISCELLANEOUS AMENDMENTS REGULATIONS 2000 (S.I. 2000/1926)

10. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted; and in one respect that they require elucidation.

11. These Regulations impose a requirement on lone parents who claim, or are entitled to, income support to take part in a work-focused interview. Regulation 2(1)(b) requires a lone parent who is entitled to income support to take part in an interview if he "(i) has not...(bb) failed" to do so. Regulation 2(1)(b)(ii) requires a lone parent who has previously taken part or failed to take part in an interview to take part in an interview after one year from the date on which "(aa) he last took part in an interview" or "(cc) he lasted failed to" do so.

12. The Committee asked the Department of Social Security to explain (a) in what circumstances a lone parent who has not failed to take part in an interview (as referred to in regulation 2(1)(b)(i)(bb)) will not fall within regulation 2(1)(b)(ii), and (b), where a lone parent has failed to take part in an interview, the time at which he last did so is to be determined for the purpose of applying regulation 2(1)(b)(ii).

13. The Department, in its memorandum printed in Appendix 5, explains that under regulation 3(2) a lone parent must attend an interview at the time and place notified by an officer of the Secretary of State and at the interview must provide the information required pursuant to that regulation. The time at which he last failed to take part in an interview is thus the date of the last occasion on which he either failed to attend at the time and place notified or failed to provide the required information. It follows that regulation 2(1)(b)(i)(bb) applies where the claimant has not failed to comply with a requirement imposed under regulation 3(2) otherwise than by having attended an interview.

14. The Department undertakes to consider, subject to the Committee's views, whether the intention could be better expressed. The Committee reports regulation 2(1)(b) for the elucidation provided by the Department's memorandum and welcomes the Department's undertaking to consider revising the drafting of this provision.

15. Regulation 5(1) defers a requirement to take part in an interview "until a date determined by an officer where he determines that an interview would not at that time" be of assistance or appropriate. The Committee asked the Department to explain whether the underlined words are drafted as intended and, if so, how they relate to the date determined by the officer.

16. The Department, in its memorandum, states that the underlined words were intended to refer to the time of the determination and that it believes this intention to be clear. In the Committee's view the intended meaning is neither clear nor appropriate. Section 2A(6)(c) of the Social Security Administration Act 1992 permits regulations to defer any requirement to take part in an interview until a time determined by the appropriate authority where the authority determines that an interview would not be of assistance or appropriate "until that time". If that expression had been used in regulation 5(1) instead of the underlined words, the difficulty identified by the Committee would not have arisen. The Committee therefore reports regulation 5(1) for defective drafting. Again, the Department undertakes to consider, subject to the Committee's views, whether the intention could be better expressed. The Committee considers that the Department should make an appropriate amendment to regulation 5(1).

THE WIRELESS TELEGRAPHY (BROADBAND FIXED WIRELESS ACCESS LICENCES) REGULATIONS 2000 (S.I. 2000/2039)

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

18. These Regulations, which are made under sections 3 and 6 of the Wireless Telegraphy Act 1998, provide for a procedure for the grant of certain wireless telegraphy licences. Section 6(2) of the 1998 Act requires the Secretary of State, before making any regulations under the Act, to publish a notice containing specified information about the proposed regulations in the London, Edinburgh and Belfast Gazettes and to consider representations made to him. Section 6(3) disapplies section 6(2) if the Secretary of State considers it inexpedient for reasons of urgency to publish a notice before making particular regulations.

19. The preamble to these Regulations makes no reference to the procedural requirements in section 6. The Committee asked the Department of Trade and Industry to explain why the preamble did not recite (as required by paragraph 2.26 of Statutory Instrument Practice) that the condition in section 6(2) or (3) had been complied with.

20. The Department, in its memorandum printed in Appendix 6, states that the condition in section 6(2) has been satisfied in this case and that the failure to state this in the preamble was an error. The Department undertakes to ensure that subsequent regulations in the same series contain the required recital in their preambles. The Committee reports the Regulations for defective drafting of the preamble, acknowledged by the Department.

THE DARTFORD-THURROCK CROSSING (AMENDMENT) REGULATIONS 2000 (S.I. 2000/2151)

21. The Committee draws the special attention of the Houses to these Regulations on the grounds that they are defectively drafted; that there has been a failure to comply with Statutory Instrument Practice; and that the Explanatory note is unnecessarily referential.

22. These Regulations, made under the Dartford-Thurrock Crossing Act 1988, increase from 1st September 2000 the charges payable to the crossing operator for the passage of abnormal loads via the Crossing.

23. Regulation 2 purports to substitute new Parts 1 and II of the Table in regulation 4 of the "Dartford-Thurrock Crossing Regulations 1999". The Dartford-Thurrock Crossing (Amendment) Regulations 1999 substituted new Parts I and II of the Table in regulation 4 of the Dartford-Thurrock Crossing Regulations 1998.

24. Neither these Regulations nor their Explanatory Note indicate the level of increase in the charges made by the Regulations, nor did the Department of the Environment, Transport and the Regions submit a memorandum to the Committee providing that information, as required by paragraph 2.77 of Statutory Instrument Practice. In addition, the Explanatory Note refers to a booklet (referred to in the 1999 amending Regulations) which is not referred to in these Regulations.

25. The Committee asked the Department to explain the reference in regulation 2 to the "Dartford-Thurrock Crossing Regulations 1999", the absence of an indication of the level of increase in the charges and the reference in the Explanatory Note to the booklet. The Department, in its memorandum printed in Appendix 7, states that the reference to the "Dartford-Thurrock Crossing Regulations 1998", that the absence of an indication of the level of increase in the charges was an oversight and that the reference in the Explanatory Note to the booklet is strictly unnecessary, although it was thought to be helpful to readers of these Regulations to provide a further reference to it.

26. The Committee reports the Regulations for the defective drafting of regulation 2 acknowledged by the Department, for the acknowledged failure to comply with paragraph 2.77 of Statutory Instrument Practice, and for the inclusion of an unnecessary reference in the Explanatory Note. Explanatory Notes should contain references to matters necessary for a proper understanding of hte instrument in question, but that is not true of the reference in this case.

THE TRAINING PROGRAMMES (CESSATION OF FUNDING) (PRESCRIBED ACTIONS) ORDER 2000 (S.I. 2000/2170)

27. The Committee draws the special attention of both Houses to the Regulations on the ground that they require elucidation.

28. Articles 3 to 5 of this Order, made under section 141 of the Learning and Skills Act 2000, prescribe (with exceptions) actions which may not be taken by "the company" without the written consent of the Secretary of State. That term is not defined in the Order.

29. The Committee asked the Department for Education and Employment to explain what is meant by "the company" in articles 3 to 5 of the Order. The Department, in its memorandum printed in Appendix 8, explains that section 141(2) of the Act prohibits a company to which the section applies from taking action of a kind prescribed by the order made by the Secretary of State without his written consent. Section 141(1) provides that the section applies to a company if the conditions in paragraphs (a) to (d) of section 141(1) are satisfied. Consequently, "the company" in the Order means any company to which section 141 applies.

30. The Committee considers that it would have been helpful if the Order had made this clear and reports the Order for the elucidation provided by the Department.

THE SHEEP AND GOATS IDENTIFICATION (ENGLAND) ORDER 2000 (S.I. 2000/2027)

31. The Committee draws the special attention of both Houses to these Regulations on the ground that in one respect they are of doubtful vires.

32. This Order made under sections 1 and 8 of the Animal Health Act 1981, makes provision for records and marking of sheep and goats in implementation of Council Directive 92/102/EEC on the identification and registration of animals. Article 5 of the Order requires a keeper who is a sheepmeat producer for the purposes of Council Regulation 3493/90/EEC, which lays down general rules for the grant of premium to sheepmeat producers, to keep and retain certain additional records. The Committee asked the Ministry of Agriculture, Fisheries and Food to explain how article 5 is within the powers conferred by the 1981 Act.

33. In its memorandum printed in Appendix 9, the Ministry acknowledges that the record-keeping obligations in article 5 have no animal health justification and should not have been imposed under the 1981 Act Regulations under section 2(2) of the European Communities Act 1972 should have been made for that purpose. The Ministry undertook to amend the Order and introduce regulations, made under the 1972 Act, imposing the additional record-keeping obligations.

34. The Committee therefore reports article 5 as being of doubtful vires, which is acknowledged by the Ministry.

THE FOOTBALL (DISORDER) (LEGAL ADVICE AND ASSISTANCE) ORDER 2000 (S.I. 2000/2127)

35. The Committee draws the special attention of both Houses to the Regulations on the ground that in respect of articles 4 and 5 of the Regulations there has been an unexpected use of powers.

36. Section 3 of the Football (Disorder) Act 2000 enables the Secretary of State by order to amend or repeal other enactments in consequence of any provision made by that Act. Section 3(4) makes an order adding to, replacing or omitting any part of the text of an Act or instrument subject to the affirmative resolution procedure in Parliament itself subject to that procedure.

37. Article 4 of this Order (which was made under the negative resolution procedure) modifies the effect, but not the text, of section 32 of the Legal Aid Act 1988. Article 5 modifies the effect, but not the text, of the Legal Advice and Assistance (Scope) Regulations 1989 (an instrument subject to the affirmative resolution procedure). The modifications are of a kind which would normally be made by amending the text of the instrument. The Committee therefore asked the Home Office to explain why these amendments were not made as textual amendments.

38. In its memorandum, printed in Appendix 10, the Home Office States that section 3(4) of the 2000 Act was framed as it is with this Order specifically in mind, and that it was made clear during the consideration by the House of Lords of the Bill which became the 2000 Act that provision would need to be made for legal advice and assistance to be available from commencement of the Act (which was likely to occur immediately before or during the Summer recess). The Home Office had taken the view that the consequential amendments needed to achieve this result could be made non-textually.

39. In the Committee's view Parliament, in enacting section 3 of the Act, cannot be taken to have expected the unnatural drafting adopted in articles 4 and 5 of the Order in order to modify the effect, but not amend the text, of an Act or affirmative instrument and so avoid the need for the amendment to be subject to the affirmative resolution procedure required by section 3(4). To the extent that they are relevant, the proceedings in Parliament referred to by the Home Office do not support the view that the amendment of primary legislation by order subject to the negative resolution procedure was envisaged. Nor does it appear to have been explained in those proceedings that the Home Office's policy aim would be achieved by modifying the effect, as opposed to amending the text, of the legislation concerned, with the result that the provisions of section 3(4) of the Act would not apply. The Committee therefore reports articles 4 and 5 of the Order for making an unexpected use of the power in section 3.


1  The Orders of Reference of the Committee are set out in the First Report, Session 1999-2000 (HL Paper 4; HC 47-i). Back

 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2001
Prepared 5 February 2001