Joint Committee on Statutory Instruments Tenth Report


TENTH 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.

DRAFT GREATER LONDON AUTHORITY (ELECTION EXPENSES) ORDER 2000

  2. The Committee draws the special attention of both Houses to this draft Order on the ground that it makes an unexpected use of the power under which it is made. A Memorandum from the Department of the Environment, Transport and the Regions in connection with the draft is printed in Appendix 1.

  3. The draft is made under powers conferred by provisions of the Representation of the People Act 1983 inserted in that Act by the Greater London Authority Act 1999. The relevant provision is section 75(1B) which provides that section 75(1) shall have effect in relation to a Greater London Authority election with the substitutions for the sum specified in section 75(1) of such sum as the Secretary of State may prescribe in an order. Section 75(1C) allows different sums to be prescribed in relation to:-

    (a)  an election of the Mayor of London;
    (b)  an election of a constituency member of the London Assembly; and
    (c)  an election of the London members of the London Assembly at an ordinary election.

  4. Section 75 prohibits election expenses not authorised by a candidate's election agent but subsection (1) contains an exception for expenses "not exceeding in the aggregate the sum of £5" incurred by an individual and not incurred in pursuance of a plan suggested by or concerted with others. (The sum of £5 was substituted for 50p by the Representation of the People Act 1985). The draft Order increases the limit of £5 to £25,000, £1,800 and £25,000 in relation to election of the Mayor, constituency member of the London Assembly and London Members of the London Assembly respectively.

  5. The Committee asked the Department to explain why the limits for third party election expenses have been so dramatically increased under this order, from £5 to £25,000 in one instance. The Memorandum explains that the change follows a decision of the European Court of Human Rights that the £5 limit, backed as it is by a criminal penalty, amounted to a violation of the right to freedom of expression and that the change is part of a general increase in the limit on third parties' expenses proposed in the current Political Parties, Elections and Referendums Bill. The Committee is grateful to the Department for their explanation. The Committee nevertheless notes that not only are the increases in amounts very great, but also that such a substantial increase is bound to raise further questions. For example, will it be possible to enforce the new, higher limits? Whether expenditure exceeds £5 is likely to be self-evident but whether a campaign has cost £20,000 or £30,000 will be difficult to discover without help from the campaigner.

  6. For these reasons the Committee concludes that the draft Order makes an unexpected use of the power under which it is made, and draws the special attention of both Houses to the draft Order accordingly.

NURSERY EDUCATION (ENGLAND) REGULATIONS 2000 (S.I. 2000/107)

  7. These Regulations prescribe matters relating to inspection and the making of grants in respect of nursery education. Regulation 7(6)(c) refers to "the conditions in paragraph (6)". The Committee asked the Department for Education and Employment whether this should not in fact be a reference to paragraph (5). In the Memorandum printed in Appendix 2, the Department acknowledged that this was the case.

  8. The Committee accordingly draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted as admitted by the Department.

PRIMARY CARE TRUSTS (MEMBERSHIP, PROCEDURE AND ADMINISTRATION ARRANGEMENTS) REGULATIONS 2000 (S.I. 2000/89).

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

  10. The Regulations make provision concerning the membership and procedure of primary care trusts in England. The Committee asked the Department of Health, in view of the fact that the powers being exercised have, as regards Wales, been transferred to the Welsh Assembly, why regulation 1 contained no provision making the Regulations applicable to Primary Care Trusts established for areas in England only. The Department, in the Memorandum printed in Appendix 3, stated that this was not necessary because the Secretary of State had no power to make the Regulations in relation to Trusts established for areas in Wales; the heading of the instrument and the footnote and explanatory notes should make the position clear; and the instrument itself was sufficiently clear on its face.

  11. The Committee's view is that an extent (or application) provision ought in future to be included in the case of an instrument such as this: the extent of an instrument is a matter of substantive law calling for a provision in the body of the instrument; and there is nothing on the face of these Regulations, that is to say, on the face of its provisions, to show that it applies only to English Primary Care Trusts.

  12. The Committee further asked the Department whether regulation 12, by which a Primary Care Trust would be able to exercise its functions through the agency of other health authorities, was intended to include Primary Care Trusts established for areas in Wales. The Department's Memorandum states the Department's view that regulation 12 would not (for the same reasons) be taken to cover Welsh health service bodies and that, if that were required, further provision would be required.

  13. The Committee reports the instrument as requiring elucidation in two respects, provided in the Memorandum from the Department of Health.

NATIONAL HEALTH SERVICE (PHARMACEUTICAL SERVICES) AMENDMENT REGULATIONS 2000 (S.I. 2000/121)

  14. These Regulations make provision regarding nurses working in Walk-in centres in England. A point similar to that just outlined arises in the case of these Regulations. The Committee asked the Department of Health why, given that the principal Regulations (made in 1992) extend to England and Wales but these amending Regulations (following devolution) extend only to England, there is no provision in the Regulations stating that their extent is limited to England. The Department once again indicates (in the Memorandum printed in Appendix 4) that the instrument, including its heading and footnotes, are sufficiently clear without an extent provision. The Department does, however, note that it would be good practice in future to include an extent provision in cases of this kind, and have agreed to do so. The Committee's view is (again and for the same reasons) that an extent provision ought to be included, especially in the case of regulations which, for England only, amend principal regulations which are law for both England and Wales.

  15. The Committee draws the special attention of both Houses to these Regulations on the ground that they require the elucidation provided by the Department.

NATIONAL HEALTH SERVICE (CHARGES FOR DRUGS AND APPLIANCES) AMENDMENT REGULATIONS 2000 (S.I. 2000/122)

  16. These Regulations make certain provision for charges for drugs and appliances. As with the two previous instruments, the Regulations extend to England only and, as with the previous instrument, these Regulations amend an England and Wales instrument. The Department of Health (in the Memorandum printed in Appendix 5) justify the lack of an extent provision on the same grounds as with the two previous instruments; but accept that in future it would be helpful to include one. In the Committee's view the Department clearly should do this.

  17. The Committee once again draws the special attention of both Houses to these Regulations, on the ground that they require the elucidation provided by the Department of Health.

HEALTH SERVICE MEDICINES (PRICE CONTROL APPEALS) REGULATIONS 2000 (S.I. 2000/124)

  18. The Committee draws the special attention of both Houses to these Regulations on several grounds. In one respect, they make an unexpected use of the power under which they are made; in several further respects they are defectively drafted; and in other respects they require elucidation.

  19. These Regulations make provision in relation to appeals against enforcement decisions made under the NHS price control scheme contained in sections 33 to 36 of the Health Act 1999. They are made under the powers in section 37(5) and (6), of which subsection (6) states that the regulations may make such provision as may be made by model rules under section 6 of the Deregulation and Contracting Out Act 1994. These regulations follow those rules (see S.I. 1996/1678) closely. Regulation 16 sets out a power to make interim orders and directions. Under sub-paragraph (3), where an application is made for an order or direction before the appointment of the chairman of the tribunal in relation to an appeal under these Regulations, the order or direction "may be made or given by the tribunal on a temporary basis". The "tribunal" is defined so that it includes members of the tribunal staff. The Committee asked the Department of Health whether this regulation was intended to empower any member of the tribunal staff, as distinct from the legally qualified chairman, to make orders or directions. In the Memorandum printed in Appendix 6, the Department of Health indicated that this was indeed the case, although the staff in question would have to be appointed by the senior chairman.

  20. The Committee considered carefully whether Parliament would have intended that the judicial functions vested in a chairman should, even temporarily, be carried out by a person not required to have legal qualifications. The model rules under the Deregulation Act clearly indicate that in appeals to which they apply such action could only be taken by the Registrar, i.e. a properly qualified lawyer. Parliament having, in section 37(6) of the Health Act 1999, expressly conferred the powers in terms of the model rules made under the Deregulation Act, it would have not have expected a departure such as this. Moreover, the Committee is also of the view that (in the absence of express provision to the contrary) Parliament would not generally authorise the exercise of judicial functions by persons not required to be legally qualified. For both these reasons the Committee believes that the power to allow any member of the tribunal staff to act under regulation 16(3) is clearly an unexpected use of the power granted by the primary legislation.

  21. There are three respects in which the instrument is defectively drafted. First, regulations 14 and 29(2)(b) refer to "the disputed" action (the phrase used in the model rules). The Committee asked the Department of Health whether this was intended to be a reference to the "enforcement decision" of the Secretary of State or other person as defined in section 37(7) of the Health Act 1999. The Department acknowledged that this was the case but considered that the words "disputed action" bore their ordinary meaning in this case and that the context was thus clear. The Committee does not agree that this expression has an "ordinary" meaning and suspects that there was a failure to adapt to the phraseology of the Health Act. The Committee is accordingly pleased to note that the Department intend to resolve the doubt by amending these Regulations at the first convenient opportunity.

  22. The second example of defective drafting occurs in regulation 27(4), which refers to representations to the tribunal made by a party under regulation 21(1)(b). The Committee pointed out that this should in fact be a reference to regulation 22(1)(b) and the Department have agreed to amend accordingly.

  23. Thirdly, regulation 30(4) refers to a person summoned as a witness in a county court in pursuance of county court regulations. Once again, the Committee pointed out that this was defectively drafted as reference should be to the Civil Procedure rules. The Department agree and propose to amend.

  24. Finally, the Committee considers that regulation 31(1) requires elucidation. This Regulation requires an appeal tribunal to decide what "enforcement action" should be taken. The Committee asked the Department of Health what range of action was intended by this expression and the Memorandum spells this out, together with examples. The core of their case is that the meaning of these words is given in the primary legislation under which the instrument is made. The Committee accepts the accuracy of this elucidation but would expect the Department to include in the instrument, when next amended, a definition drawn from section 37(6)(a) of the Health Act 1999. The Committee reports regulation 31(1) as requiring elucidation provided by the Department.

ADOPTION (INTERCOUNTRY ASPECTS) ACT 1999 (COMMENCEMENT NO. 1) ORDER 2000 (S.I. 2000/52)

  25. This order partially brings into force section 13 of the Adoption (Inter-country Aspects) Act 1999. The power under section 18(3) of the Act to appoint a day for commencement is, in terms of section 16(1), "exercisable only after consultation with the National Assembly for Wales". Hence that consultation is a pre-requisite in law for the valid exercise of the power. The Committee asked the Department of Health whether such consultation had taken place and if so why the instrument did not recite the fact in the preamble (as required by paragraph 2.6 of the Statutory Instrument Practice). In the Memorandum printed in Appendix 7, the Department of Health confirmed that such consultation had taken place and accept that the preamble to the instrument should have said so. They have agreed to note this point for the future.

  26. The Committee accordingly draws the special attention of both Houses to this Order as it requires the elucidation provided by the Department.


1  
The Orders of Reference of the Committee are set out in the First Report, Session 1999-00 (HL Paper 4; HC 47-i). Back


 
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