Joint Committee on Statutory Instruments Seventh Report


SEVENTH 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.  

CROWN COURT (AMENDMENT NO. 2) RULES (NORTHERN IRELAND) 1999
(S.R. 1999/491)

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

  3. These Rules prescribe procedures in the Crown Court for the determination of devolution issues under Schedule 10 to the Northern Ireland Act. The Committee asked the Northern Ireland Court Service to explain the relevance of the reference in Form 11 to paragraph 7 of Schedule 10 to the Northern Ireland Act 1998 (reference of devolution issue to the Court of Appeal) when the form was clearly an order for reference of a devolution issue to the Judicial Committee of the Privy Council. The Court Service acknowledge, in the Memorandum printed in Appendix 1, that the reference should have been to paragraph 33 of Schedule 10 of the Act and undertake to correct the error at the earliest opportunity. The Committee accordingly reports Form 11 for defective drafting, acknowledged by the Department.

IONISING RADIATIONS REGULATIONS 1999 (S.I. 1999/3232)

  4. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are not drafted in accordance with proper drafting practice and that there is a doubt as to the vires of one provision.

  5. The Committee asked the Department of the Environment, Transport and the Regions to explain why paragraph (4) of regulation 7 provides that the requirements of that regulation are without prejudice to the requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1992 (S.I. 1992/2051), given that the 1992 Regulations have been revoked by S.I. 1999/3242. In the memorandum printed in Appendix 2 the Department indicate that the intention was that regulation 7(4) should apply in respect of regulation 3 of S.I. 1999/3242 upon the revocation of the 1992 Regulations, and that this result has been achieved by virtue of section 17(2)(a) of the Interpretation Act 1978. They acknowledge, however, that a reference to the 1999 Regulations would have been of greater assistance to the reader. The Committee accordingly reports that regulation 7(4) is not drafted in accordance with proper drafting practice, acknowledged by the Department.

  6. The Committee also asked the Department what effect regulation 36(7) has on section 36 of the Health and Safety etc. Act 1974 and what provision in the Act authorises it, and drew attention to its Fifth Report (Session 1996—97) in which it reported an identical provision in S.I. 1996/2089 for doubt as to its vires. The Department apologise for including regulation 36(7), and undertake to remove it. The Committee reports regulation 36(7) on the ground that there is a doubt as to its vires.

MANAGEMENT OF HEALTH AND SAFETY AT WORK REGULATIONS 1999 (S.I. 1999/3242)

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

  8. These Regulations re-enact the Management of Health and Safety at Work Regulations 1992 with modifications. Paragraph (4) of regulation 19 provides that provisions contained in that regulation are without prejudice to (a) the provisions contained elsewhere in the regulations, and (b) any prohibition or restriction arising otherwise than by this regulation on the employment of any person. In relation to an identical provision in earlier Regulations (S.I. 1997/35), the Department was unable to identify any provisions or prohibitions which might otherwise be prejudiced and conceded that it served no particular purpose. The Committee, in its Fourteenth Report (Session 1996-97) reported that unnecessary provision for defective drafting and recommended that it be removed at the next opportunity for amendment. In the Memorandum printed in Appendix 3, the Department apologise for their failure to rectify this point in this instrument and undertake to amend the Regulations at the earliest possible opportunity. The Committee accordingly reports regulation 19(4) for defective drafting, acknowledged by the Department.

MERCHANT SHIPPING (REGISTRATION OF SHIPS, AND TONNAGE) (AMENDMENT) REGULATIONS 1999 (S.I. 1999/3206)

  9. The Committee draws the attention of both Houses to these Regulations on the ground that they are drafted in an unnecessarily referential way.

  10. Regulation 3(c) provides for the substitution of the definition of "pleasure vessel" in regulation 1(2) of the 1993 Regulations. The new definition provides that the expression means a pleasure vessel as defined in Regulation 2 of the Merchant Shipping (Vessels in Commercial Use for Sport and Pleasure) Regulations 1998. The Committee asked why the Department did not, more helpfully, set out the definition in full. In the Memorandum printed in Appendix 4, the Department explain that, in view of the length and complexity of the full definition, it was thought convenient to shorten the drafting of the present Regulations. They also mention that a reference to the 1998 Regulations helpfully indicates that the definition remains unchanged. However, given the Committee;s concern that the reader should not be put to the inconvenience of having to refer to another instrument solely for the purpose of finding the meaning of "pleasure vessel", the Department intend to set out the definition in full in future instruments. The Committee reports regulation 3(c) on the ground that it contains a definition drafted in an unnecessarily referential manner.

SOCIAL SECURITY (CLAIMS AND INFORMATION) REGULATIONS 1999 (S.I. 1999/3108)

  11. The Committee draws the attention of both Houses to these Regulations on the ground that they are defectively drafted in several places.

  12. These Regulations are made either by virtue of, or in consequence of, provisions in the Welfare Reform and Pensions Act 1999. The Committee raised several points concerning the drafting of the Regulations with the Department of Social Security. The Department's memoranda are printed in Appendix 5.

  13. Paragraph (6)(e) of regulation 4 provides that a local authority may conduct a work-focused interview. The Committee asked the Department to explain why this provision was needed, given that paragraph (1) already provided that a local authority may conduct a work-focused interview. The Department explain that paragraph 6(e) was included for the sake of clarity. In the Committee's view, however, regulation 4(6)(e) is superfluous and that this constitutes defective drafting. The Committee reports accordingly.

  14. Paragraph (6) of the new regulation 4(A) (inserted by regulation 5) defines a "participating authority" as meaning any local authority or persons to whom claims can be made in accordance with paragraph (1). The Committee asked the Department to indicate the persons and bodies to whom those claims could be made, given that paragraph (1) provides only that a claim may be made to any office displaying the "one" logo. A similar question was asked in relation to regulation 6(6). The Department explain that the intention of this provision is to allow the benefits specified in paragraph (2) of new regulation 4A to be made to a participating authority, that is to a local authority or person providing services to, or exercising functions of, a local authority. Such claims are to be made at the offices displaying the "one" logo. The Department accept that as presently drafted regulation 4A(1) and (6) do not define the authority or persons to whom the claims may be made and that the same is true of regulation 6(6). The Committee accordingly reports paragraph (6) of new regulation 4A, and paragraph (6) of regulation 6 for defective drafting, acknowledged by the Department.

  15. Paragraph (3) of regulation 6 identifies the areas to which "this paragraph refers". However, no other provision refers to paragraph (3), so it is not clear what effect it has. The Department explain that the intention is that paragraph (1) should apply to persons who reside in the areas to which paragraph (3) refers, but accept that paragraph (1) fails to make this clear. The Committee reports regulation 6(1) for defective drafting, acknowledged by the Department.

  16. New regulation 72B(1) (inserted by regulation 9) provides that, in certain specified cases, claims for housing benefit may be made at the offices of a "relevant authority" defined in paragraph (2) to include the appropriate local authority, a person providing services relating to housing benefit to the appropriate authority, and a person authorised to exercise any function of an authority relating to housing benefit. The Committee asked the Department to identify the provision in the recital of powers which authorises this provision and paragraphs (1) and (2)(c) to (e) of new regulation 62B (inserted by regulation 11). The Department explain that the powers are set out in sections 5(1)(a) and 6(1)(a) of the Social Security Administration Act 1992 and acknowledge that those powers should have been specifically identified. The Committee accordingly reports the recital of powers for defective drafting, acknowledged by the Department.

  17. New regulations 72B(10) (inserted by regulation 9) and 62B(10)(a) (inserted by regulation 11) provide for the modification of certain words in provisions of the two principal Regulations of 1987 and 1992 respectively. The Department accept that the words in question do not appear in those provisions. The Committee reports new regulations 72B(1) and 62B (10)(a) for defective drafting, acknowledged by the Department.

GOOD LABORATORY PRACTICE REGULATIONS 1999 (S.I. 1999/3106)

  18. The Committee draws the attention of both Houses to these Regulations on the grounds that they are defectively drafted in two places and that they make unusually wide use of the power in defining who may be the lawful recipient of confidential or commercially sensitive information given under the Regulations.

  19. These Regulations contain the legislative measures necessary for the implementation within the United Kingdom of certain Council Directives on the harmonisation of provisions relating to good laboratory practice. The Memoranda from the department are printed in Appendix 6.

  20. The Committee asked for an explanation of the drafting of regulation 2(1) since the definition of "regulatory study" begins "means a non-clinical experiment or set of experiments-" and continues [c] "compliance with the principles of good laboratory practice is required in respect of that experiment...". The Committee suggested that some words such as "in respect of which" should have been included at the beginning of paragraph (c) to continue the sense of the opening words. The Committee raised a similar point on the drafting of regulation 5(4) suggesting that words such as "it is necessary to do so in order" were needed at the beginning of paragraph 5(4)(b) thus clarifying the relationship of (b) to the statement at the beginning of paragraph 5(4). The Committee notes with satisfaction that the Department's further Memorandum accepts that, in the case of regulation 2(1) as well as in the case of regulation 5(4), such further words are necessary to make sense of these provisions. The Committee reports regulations 2(1) and 5(4) for defective drafting, acknowledged by the Department.

  21. Regulation 10(2) lists the authorities or persons to whom an enforcement officer may lawfully disclose commercially sensitive or other confidential information to which he has had access in the course of enforcing compliance with these Regulations. The Committee was surprised that the list included at (d) "a police force", that is all the members of a force as defined in section 101(1) of the Police Act 1996, regardless of their position and functions. The Committee is aware of at least ten Acts of Parliament since the Health and Safety at Work etc Act 1974 in which similar disclosure recipients were defined and found no other example of a case in which disclosure to the police (or for purposes of criminal proceedings) was authorised in terms that included all the members of a police force. In particular, section 28 of the 1974 Act authorises disclosure only to "a constable authorised by a chief officer to receive it [the information]". To the question whether they intended that disclosure should be authorised, in the case of a police force to all its members the Department confirmed that this was the intention. Accordingly, the Committee reports regulation 10(2) because it represents an unusually wide use of the power to authorise disclosure of confidential or commercially sensitive information obtained under statutory powers.


1   The Orders of Reference of the Committee are set out in the First Report, Session 1999-00 (HL Paper 4; HC 50-i). Back


 
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