Joint Committee on Statutory Instruments Thirty-Second Report


THIRTY-SECOND 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 Ministry of Agriculture, Fisheries and Food in connection with the Agricultural Holdings (Units of Production) (England) Order 2000 (S.I. 2000/1984) is printed in Appendix 1.

3. A memorandum from the Department of Health in connection with the General Medical Council (Registration (Fees) (Amendment) Regulations) Order 2000 (S.I. 2000/2141) is printed in Appendix 2.

THE FOOD IRRADIATION PROVISIONS (ENGLAND) REGULATIONS 2000 (S.I. 2000/2254)

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

5. These Regulations, which are made under the Food Safety Act 1990, give effect in England to Directives 1999/2/EC and 1999/3/EC by amending, inter alia, the Food (Control of Irradiation) Regulations 1990. Regulation 3 inserts into the 1990 Regulations a definition of "the Directives", but that expression is not used in those Regulations. The Committee asked the Department of Health to explain the inclusion of this definition.

6. The Department, in its memorandum printed in Appendix 3, confirms that the definition is not used in the 1990 Regulations and was included in error. The Committee accordingly reports regulation 3 for defective drafting, as acknowledged by the Department.

7. Regulation 7 of the 1990 Regulations treats compliance in Northern Ireland with Northern Irish legislation corresponding to the 1990 Regulations as compliance with the 1990 Regulations. Regulation 7(b) of these Regulations amends regulation 7 of the 1990 Regulations by inserting after "Northern Ireland" the words "Scotland or Wales, as the case may be". The Committee asked the Department to explain the purpose and effect of the words "as the case may be" in the first place where they are inserted. The Department, in its memorandum, accepts that the words add nothing, and the Committee accordingly reports regulation 7(b) for defective drafting, as acknowledged by the Department.

8. Regulation 9(b) inserts new sub-paragraph (ff) in paragraph 1 of Part I of Schedule I to the 1990 Regulations. Sub-paragraph (ff) refers to an international Code of Practice. The Committee asked the Department to explain where copies of the Code may be obtained and why this information was not included in the Explanatory Note to the Regulations, as required by paragraph 2.48 of Statutory Instrument Practice. In its memorandum, the Department indicates where copies of the Code may be obtained and apologises for not including this information in the Explanatory Note. The Committee accordingly reports the Regulations for failing to comply with paragraph 2.48 of Statutory Instrument Practice, as acknowledged by the Department.

9. Regulation 9(c) inserts a new paragraph (gg) in paragraph 1 of Part I of Schedule 1 to the 1990 Regulations. Paragraph (gg) requires applicants for irradiation licences to send to the licensing authority particulars of "details of the person who has been designated to be responsible for compliance" with certain conditions. The Committee asked the Department to explain what details are required to be provided. In its memorandum, the Department explains that the details include the designated person's identity, his qualifications and his position within the applicant's management structure. The Committee considers that paragraph (gg) requires the elucidation provided by the Department's memorandum, and therefore reports regulation 9(c) as requiring the elucidation provided.

10. Regulation 12 substitutes a new paragraph 1(1) in Part III of Schedule 1 to the 1990 Regulations. New paragraph 1(1)(a) permits the variation of an irradiation licence only if the licence as varied will apply to "the same one of the seven permitted descriptions of food" as it previously did. Under the 1990 Regulations a licence may apply to more than one permitted description of food. The Committee therefore asked the Department to explain what was meant by the underlined words. In its memorandum, the Department acknowledges that a licence may in principle apply to more than one permitted description of food, but states that only one licence relating to a single food irradiation facility has in fact been issued and that, for control purposes, a single licence would in practice be issued for each permitted description of food. The amendment was drafted on this basis. It accepts, however, that the amendment should have reflected the strict legal position, and the Committee accordingly reports regulation 12 for defective drafting, as acknowledged by the Department.

11. Regulation 14(a) substitutes a new paragraph 2 in Part VI of Schedule 1 to the 1990 Regulations. New paragraph 2(a) specifies the amount of the application consideration charge. Where the application relates to more than one description of food paragraph 2(a)(i) specifies an additional charge, being "a sum (fixed at the discretion of the licensing authority) no greater than £1,5000...". The Committee asked the Department what was intended by "£1,5000". In its memorandum, the Department explains that this is a "printing error" for "£1,500" (although it appears in the copy of the signed version sent to the Committee), and states that in view of the other figures specified in paragraph 2, it is clear that it is the extra "0" which is wrong. The Committee is not convinced that this is clear. Bearing in mind that this is a charging provision the Committee considers that the Department should amend regulation 14(a) as soon as possible.

12. Regulation 15 substitutes a new Schedule 2 to the 1990 Regulations. Schedule 2 supplements regulation 4 of the 1990 Regulations, which (as amended) prohibits the importation into England of irradiated food for the purpose of sale unless, among other things, it is of a recognised appropriate origin. In the case of food other than herbs and spices irradiated in a country or territory outside the European Community, paragraph 3(1) of Schedule 2 requires recognition of appropriate origin to be effected by the publication of a notice in the London Gazette. Paragraph 3(2) defines "origin" in relation to a country or territory specified in a notice, as origin in that country or territory. Paragraph 3(3) then attaches conditions to be satisfied before recognition of appropriate origin may be effected under paragraph 3(1) "in respect of any country". The Committee asked the Department whether the references in paragraph 3(3) to a "country" are intended to include a "territory". The Department, in its memorandum, confirms that this is the intention and that paragraph 3(3) should have included references to a "territory". The Committee accordingly reports regulation 15 for defective drafting, as acknowledged by the Department.

13. The Department undertakes to make the necessary amendments to these Regulations at the first available opportunity. The Committee notes this, but, as mentioned above, it considers that the Department should amend the error in regulation 14(a) quickly.

THE FAMILY PROCEEDINGS (AMENDMENT) RULES 2000 (S.I. 2000/2267)

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

15. This instrument amends the Family Proceedings Rules 1991. Rule 2, which contains transitional provisions, refers, in paragraph 3(a) to rule "4(a)". Rule 4, however, is not further subdivided. The Committee therefore asked the Lord Chancellor's Department to explain this reference to rule "4(a)".

16. The Department, in its memorandum printed in Appendix 4, explains that the reference was retained from an earlier drafted in error and the Committee accordingly reports rule 2(3) for defective drafting, as acknowledged by the Department.

17. Rule 9 substitutes a new rule 2.70 of the 1991 Rules. Paragraph (5) of the substituted rule refers to a valuation of pension rights or benefits which has been furnished or requested pursuant to section 94(1)(a), (aa) or (b) of the Pension Schemes Act 1993. Those provisions confer on members of certain types of pension scheme rights to the cash equivalent of their accrued benefits in certain circumstances, but make no provision for the furnishing or requesting of valuations. The Committee therefore asked the Department to explain these references.

18. In its memorandum, the Department states that new rule 2.70(5) repeats the definitions used in the Divorce etc. (Pensions) Regulations 2000 and that, whilst the provisions of section 94(1) of the 1993 Act do not themselves relate to the furnishing or requesting of a valuation, every valuation of a cash equivalent transfer value exists for the purpose of determining the extent of the right conferred by those paragraphs and is, in that sense, pursuant to them. The Committee appreciates the Department's intention in drafting new rule 2.70(5) as it did, but in the Committee's view the words "pursuant to" are not apt in relation to section 94(1)(a), (aa) and (b). "For the purposes of" should have been used in this connection. The Committee accordingly reports rule 2(3) for defective drafting.

19. Rule 10 inserts a new rule 10.26 into the 1991 Rules, dealing with the Human Rights Act 1998. Paragraph (18) of rule 10.26 refers to a claim made under section 9(3) of the 1998 Act; and paragraph (19) refers to a claim in respect of a judicial act to which section (sic) 9(3) and (4) of that Act applies. The Committee asked the Department whether these references should have been to section 7(1). In its memorandum, the Department, whilst acknowledging that the references could have been to section 7(1), states that the reference to section 9(3) is sufficient, since the opening lines of section 9(1) make it clear that a claim under section 9 is a sub-class of proceedings under section 7. The Department cites rule 19.4A(3) of the Civil Procedure Rules in support.

20. The Committee does not accept the Department's argument. The proceedings referred to in section 9 of the 1998 Act are proceedings under section 7 of the Act and it is not correct to refer to a claim as one made under section 9 (or section 9(3)). Furthermore, as section 9(3) refers only to proceedings in respect of a judicial act done in good faith, it is unclear whether rule 10.26(18) and (19) is intended to apply to proceedings in respect of a judicial act where no claim is made that the act was done in good faith. The precedent cited by the Department does not support its argument, as the rule in question, although titled "Section 9 of the Human Rights Act 1998", does not refer to that section but simply to a claim made under that Act in respect of a judicial act. The Committee considers that similar wording should have been used in the present case, and accordingly reports rule 10 for defective drafting.

THE WATER SUPPLY AND SEWERAGE SERVICES (CUSTOMER SERVICE STANDARDS) (AMENDMENT) REGULATIONS 2000 (S.I. 2000/2301)

21. The Committee draws the special attention of both Houses to these Regulations on the g round that they are defectively drafted.

22. These Regulations amend the Water Supply and Sewerage Services (Customer Service Standards) Regulations 1989. Regulation 2(3) substitutes a new regulation 3 of those Regulations. New regulation 3(1) states that regulation 3 applies where a water or sewerage undertaker "decides to visit the premises of a customer...which requires access to be afforded to the representative". The Committee asked the Department of the Environment, Transport and the Regions to explain the meaning of the words quoted and to identify the representative referred to.

23. The Department, in its memorandum printed in Appendix 5, explains that the words quoted are intended to describe a situation in which it is proposed that a representative of a water or sewerage undertaker is to visit a customer's premises and the customer (or his representative) needs to be present to allow the undertaker's representative to gain access to the premises. The Department acknowledges that regulation 3(1) is defectively drafted and undertakes to correct the error as soon as possible. The Committee accordingly reports regulation 2(3) for defective drafting, as acknowledged by the Department.

THE IMMIGRATION (EUROPEAN ECONOMIC AREA) REGULATIONS 2000 (S.I. 2000/2326)

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

25. These Regulations re-enact, with amendments and additions, the Immigration (European Economic Area) Order 1994. Regulation 4 defines the expression "self-employed person who has ceased activity" by reference to the four cases set out in sub-paragraphs (a) to (d) of regulation 4(1). Regulation 4(1)(b) refers to a person who "(ii) has terminated his activity as a self-employed person as a result of a permanent incapacity to work". Regulation 4(3) provides that for the purposes of paragraph 1(a) and (b) periods of activity completed in an EEA State by certain persons are to be considered as having been completed in the United Kingdom. Given that regulation 4(1)(b) does not refer to any period of activity completed in the United Kingdom, the Committee asked the Home Office to explain the purpose and effect of regulation 4(3) as it applies for the purposes of regulation 4(1)(b).

26. The Home Office, in its memorandum printed in Appendix 6, acknowledges that the drafting of regulation 4(1)(b) is defective in this respect. This should have made it clear that the activity referred to is activity in the United Kingdom. The Department further observes that in view of the provisions of Article 2(1) of Directive 75/34/EEC regulation 4(3) should also refer to paragraph (1)(c) of regulation 4. The Committee accordingly reports regulation 4(1)(b) and (3) for defective drafting, as acknowledged by the Department.

27. Regulation 6 defines the expression "family member". Regulation 6(2) sets out the persons who are included in that expression in the case of a student. Regulation 6(3) sets out those persons in the case of a self-sufficient or retired person. Regulation 6(4) sets out those persons "in any other case", but does so in terms identical to those in regulation 6(3). The Committee therefore asked the Home Office to explain the purpose of regulation 6(3). The Home Office, in its memorandum, accepts that regulation 6 is defectively drafted and that paragraph (3) should have been omitted. The Committee accordingly reports regulation 6 for defective drafting, as acknowledged by the Department. The Committee notes that the Department intends to amend the Regulations at an early opportunity.

SUMMARY APPEAL COURT (NAVY) RULES 2000 (S.I. 2000/2370)
SUMMARY APPEAL COURT (ARMY) RULES 2000 (S.I. 2000/2371)
SUMMARY APPEAL COURT (AIR FORCE) RULES 2000 (S.I. 2000/2372)

28. The Committee draws the special attention of both Houses to these sets of Regulations on the grounds that each has been defectively drafted.

29. These Rules regulated the practice and procedure to be followed in proceedings before a summary appeal court established, respectively, under the Naval Discipline Act 1957, the Army Act 1955 and the Air Force Act 1955, in each case as amended by the Armed Forces Discipline Act 2000. Rule 10 of each instrument provides for the determination of applications under, inter alia, section 52FK(2) of the Naval Discipline Act 1957 and section 83ZE(2) of each of the 1955 Acts, to extend the period of time for bringing an appeal. Under those sections the Court may only grant such an application within 14 days of the date on which the punishment was awarded. Rule 10(2) requires there to be a hearing for the purposes of determining an application (a) if the applicant requests one in accordance with rule 10(4), or (b) if the judge advocate so directs. Where the judge advocate is minded to refuse an application without a hearing, rule 10(3) requires the court administration officer to give notice in writing of that fact to the applicant. Rule 10(4) then entitles the applicant to request a hearing of the application by giving written notice to the court administration officer before the expiry of 14 days beginning with the date of the notice under rule 10(3). Given the provisions of the primary legislation, the Committee asked the Ministry of Defence to explain how rule 10, and in particular paragraphs (3) to (6), is intended to operate in relation to such an application.

30. The Department, in its memorandum printed in Appendix 7, explains that the procedure under rule 10(2)(a), (3) and (4) is intended to apply only to applications under section 52FK(3) of the 1957 Act (and its equivalents under each of the 1955 Acts), which deal with applications for leave to bring appeals out of time, and that rule 10 is defectively drafted in not being so restricted. The Committee accordingly reports rule 10(2)(a), (3) and (4) for defective drafting, as acknowledged by the Department.

MOTOR FUEL (DESIGNATED FILLING STATIONS AND FUEL DEPOTS) ORDER 2000 (S.I. 2000/2484)
LIQUID AND GASEOUS FUEL (DESIGNATED FILLING STATIONS AND FUEL DEPOTS) ORDER 2000 (S.I. 2000/2522)
LIQUID AND GASEOUS FUEL (DESIGNATED FILLING STATIONS AND FUEL DEPOTS) (NO. 2) ORDER 2000 (S.I. 2000/2523)
LIQUID AND GASEOUS FUEL (DESIGNATED FILLING STATIONS AND FUEL DEPOTS) (NO. 3) ORDER 2000 (S.I. 2000/2530)
LIQUID AND GASEOUS FUEL (DESIGNATED FILLING STATIONS AND FUEL DEPOTS) (NO. 4) ORDER 2000 (S.I. 2000/2533)
LIQUID AND GASEOUS FUEL (DESIGNATED FILLING STATIONS AND FUEL DEPOTS) (NO. 5) ORDER 2000 (S.I. 2000/2535)

31. The Committee draws the special attention of both Houses to these six sets of Regulations on the grounds that each one represents an unexpected use of power under section 1(1)(a) of the Energy Act 1976.

32. Each of these Orders, "for the purposes of the exercise [by the Secretary of State] of the powers conferred on him by sections 1 and 2 of the Energy Act 1976 to make orders and give directions respectively", designates filling stations and fuel depots mentioned in a list published by the Secretary of State. The Orders are expressed to be made in exercise of the powers conferred by section 1(1)(a) of the 1976 Act, which enables the making of Orders to provide for regulating or prohibiting the production, supply, acquisition or use of any of the fuels specified in that section. The Committee asked the Department of Trade and Industry to explain in what way the Orders so provide.

33. The Department, in its memorandum printed in Appendix 8, asserts that in combination with other matters the Orders (now revoked) had the effect of regulating the supply of fuel. They also argue that the depots and filling stations concerned were designated to allow the Secretary of State to make further orders or give directions to regulated supply by reference to those premises.

34. The Committee is not persuaded that the Orders had the effects contended for by the Department. Mere designation does not seem to the Committee to produce any legal effect at all. Had the Secretary of State wished to make further orders under section 1, or give directions under section 2, those orders or directions could have specified the sites to which they applied. It therefore reports each of these Orders as making an unexpected use of the power in section 1(1)(a) of the 1976 Act.


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


 
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