Joint Committee on Statutory Instruments Twenty-Second Report


TWENTY-SECOND 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 Department of Trade and Industry in connection with the Export of Goods (Control) (Amendment No. 2) Order 2000 (S.I. 2000/1239) is printed in Appendix 1.


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

   4. This Order is made by the Secretary of State under the powers in section 124A of the Road Traffic Regulation Act 1984 (inserted by section 272 of the Greater London Authority Act 1999) to designate roads or proposed roads which are to be GLA side roads. The Order designates a stretch of road in the London Borough of Bexley as such as road, without any measurement of distance.

   5. The Committee asked the Department of the Environment, Transport and the Regions why article 2 and the title to the Schedule refer to "roads" in the plural and article 2(3) explains the abbreviation for metres, given that the schedule to the order designates only one road, without any measurement of distance. In the memorandum printed in Appendix 2, the Department explains that this Order is one of a series of instruments all the others of which designate several roads and that for consistency of the orders a common form framed in the plural was adopted. The abbreviation for metres was included by oversight. The Committee, whilst accepting that the legal effect of this Order is not affected, deprecates the preparation of a large number of regulations in such a way as to ignore important distinctions between them: statutory instruments are unique pieces of legislation and should be drafted with appropriate precision. The Committee accordingly reports the order for defective drafting.

DRINKING WATER (UNDERTAKINGS) (ENGLAND AND WALES) REGULATIONS 2000 (S.I. 2000/1297)

   6. The Committee draws the special attention of both Houses to these regulations on the ground that they make an unexpected use of the power in section 2 of the European Communities Act 1972.

   7. These regulations specify requirements which must be satisfied before an undertaking given by a water company may be accepted by the relevant enforcement authority under section 19(1)(b) of the Water Industry Act 1991, for the purposes of ensuring compliance with requirements of Directive 80/778/EEC (the Drinking Water Directive) (regulation 2). The regulations concern action to be taken following water contamination and are made to ensure United Kingdom compliance with the judgment of the European Court of Justice in Case C-340/96, Commission v. United Kingdom [1999] ECR I-2023. The Committee asked the Department of Environment, Transport and the Regions to identify the provision in the regulations (or elsewhere, if it appears elsewhere) which gives effect to the Judgment of the European Court, so far as it calls for the relevant undertakings to include "where appropriate, the information to be given to the population groups concerned".

   8. Paragraph 29 of the judgement of the European Court requires publicity to be given when an undertaking is accepted by an enforcement authority. In the memorandum printed in Appendix 3, the Department contends that the Water Industry Act 1991 already deals with the matter of notification of those affected by water contamination. It is pointed out, firstly, that section 19(3)(b) of the 1991 Act requires the Secretary of State to tell the relevant population groups that he has accepted the undertaking. The Department points out, secondly, that section 195 enables the public to inspect and obtain copies of undertakings registered in the register kept under that section. The Committee does not, however, accept that these two provisions amount to an adequate interpretation of a Community obligation to include in water companies' undertakings an explanation of the steps which will be taken to give appropriate information to the affected population groups. That positive obligation is not satisfied by the Secretary of State informing them that he has accepted an undertaking and by (passively) making information available to those who actually seek it out. The Committee accordingly reports this instrument for inadequate implementation of the judgement which it purports to enforce.

IN VITRO DIAGNOSTIC MEDICAL DEVICES REGULATIONS 2000 (S.I. 2000/1315)

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

   10. These regulations implement Directive 98/79/EC of the European Parliament and of the Council on in vitro diagnostic medical devices. The Committee asked the Department of Health to explain the intention of the regulations regarding enforcement notices. An enforcement notice as respects a device authorised to be served under regulation 19(1) must specify the relevant provision "of these regulations", require the recipient of the notice to ensure that the device conforms with the specified provision and may specify measures to be taken to secure compliance with the provisions of the regulations. In the case of a relevant device within regulation 4, the Committee asked the Department to explain whether the provision to be specified in the enforcement notice will be regulation 4(1) [or (2)], that is, the restriction on placing on the market or the technical requirement identifying it (which is found in Annex 1 of the Directive). If the Department argued that it was the latter case, the Committee wished to know how the specified Annex requirement could be deemed to fall within the quoted words of regulation 19(1).

   11. In the memorandum printed in Appendix 4, the Department states that their practice would be to refer in one part of the notice to the relevant provision of the regulations including elsewhere in the notice a reference to the relevant annex requirements. The Department however concedes that clarification of the procedure in amending regulations would necessitate the inclusion of reference to the Annex in enforcement notices by adding the words "(and, where applicable, of the Directive)" to paragraph 19(1)(c) of these regulations. The Committee accordingly reports these regulations for defective drafting, acknowledged by the Department.

PETS TRAVEL SCHEME (PILOT ARRANGEMENTS) (ENGLAND) (AMENDMENT) ORDER 2000 (S.I. 2000/1298)

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

   13. This order amends the Rabies (Importation of Dogs, Cats and Other Mammals) Order 1974 (the 1974 Order) and the Pet Travel Scheme (Pilot Arrangements) (England) Order 1999. The Committee asked the Ministry of Agriculture, Fisheries and Food to explain a reference in article 4(2B) of the 1974 Order as inserted by article 2(3) of this instrument. It refers to the new requirement for a delay of six months between the taking of a blood sample from, and the importation of, an animal. This is stated to be a requirement under sub-paragraph (c) of paragraph (2A). The Committee suggested to the Department that the reference should be to sub-paragraph (d) of that provision.

   14. In the memorandum printed in Appendix 5, the Department acknowledges that the reference should be to sub-paragraph (d) rather than sub-paragraph (c). The error has already been corrected by means of a further order, the Pets Travel Scheme (Pilot Arrangements) (England) (Amendment) (No. 2) Order 2000. Both this and S.I. 2000/1298 came into force on 5th June 2000. The Committee accordingly reports the order for defective drafting, acknowledged by the Department


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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