Joint Committee on Statutory Instruments Thirty-Third Report



THIRTY-THIRD 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 by the Home Office in connection with the Immigration (Designation of Travel Bans) Order 2000 (S.I. 2000/2724) is printed in Appendix 1.

3. A memorandum by the Department of Health in connection with the Specified Risk Material (Amendment) (England) Regulations 2000 (S.I. 2000/2672) is printed in Appendix 2.

4. A memorandum by the Department of Trade and Industry in connection with the Dual-Use Items (Export Control) Regulations 2000 (S.I. 2000/2620) is printed in Appendix 3.

ANIMALS AND ANIMAL PRODUCTS (IMPORT AND EXPORT) (ENGLAND AND WALES) (AMENDMENT) (NO. 1) REGULATIONS 2000)

5. The Committee draws the special attention of both Houses to these Regulations on the ground that there was a procedural defect in their laying.

6. These regulations amend the Animals and Animal Products (Import and Export) (England and Wales) Regulations 2000 the purpose of which is to ensure the effective application in England and Wales of Commission Decision 2000/528/EC laying down measures to prevent the spread of classical swine fever.

7. It is in the nature of such protective measures that they are subject to amendment at short notice, whether to relax or intensify restrictions which they impose, depending on the spread of the disease to which they relate.

8. On 12 September 2000 the Commission adopted an amending Decision which extended the period of application of its original Decision from 15 September to 15 October 2000. These Regulations therefore had to be in force by 15 September 2000 at the latest.

9. The Regulations were in fact made on 14 September 2000 and expressed to come into force on the following day. As they were laid before Parliament on 15 September, the day on which they came into force, it follows that they came into force before they were laid (because a statutory instrument comes into force at the beginning of the relevant day but is laid in the course of the day, during business hours).

10. In those circumstances the proviso to section 4(1) of the Statutory Instruments Act 1946 required the Ministry of Agriculture, Fisheries and Food to send a notification to the Lord Chancellor and the Speaker.

11. The Committee noticed that no such notification had been received and asked why. The Department in its memorandum printed in Appendix 4 apologised for overlooking this requirement in the haste with which the instrument had had to be drafted and made.

12. The Committee accordingly reports these Regulations for failure to comply with the procedural requirement of the proviso to section 4(1) of the 1946 Act acknowledged by the Department.

HARLOW PRIMARY CARE TRUST (ESTABLISHMENT) ORDER 2000 (S.I. 2000/2820)

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

14. This Order is one of a series by which the Secretary of State for Health has established Primary Care Trusts for the purpose of, inter alia, exercising functions in relation to the provision of general medical services. This particular Order establishes the area of the Harlow Primary Care Trust, deals with its membership and makes transitional arrangements for the period before the Trust becomes operational on 1 April 2001.

15. In common with certain other Orders in this series this Order contains a definition of a term "establishment date" which is not otherwise used in the Order. The Committee asked the Department of Health to explain why it did so.

16. The Department's memorandum printed in Appendix 5 acknowledges, and apologises for, the error which a letter from the Committee had drawn to its attention in relation to a number of other Orders on 1 November 2000 and explains that, because this Order was made on 13 October before that letter was received, it could not act upon it in this case. It does, however, promise to take steps to ensure that the same error does not appear in future such Orders.

17. The Committee accordingly reports article 1(2) of this Order for defective drafting acknowledged by the Department.

ADOPTION (INTERCOUNTRY ASPECTS) ACT 1999 (COMMENCEMENT NO. 3) ORDER 2000 (S.I. 2000/2821)

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

19. This Order brings into force section 16(2) of the Adoption (Intercountry Aspects) Act 1999. It does so by specifying "16th of October" as the appointed day for that purpose. It does not, however, specify any year. The Committee asked the Department of Health to explain why it did not do so. The Department's memorandum printed in Appendix 6 argues that it is implicit (presumably from the date on which the Order was made) that the intended day is 16 October 2000, as is confirmed by the Explanatory Note.

20. Failure to specify a commencement date unambiguously may render it impossible to ascertain with certainty the date on which a provision is to come into force thus rendering the Order in question ineffective.

21. In this case the Committee accepts that the intended date can be ascertained with sufficient certainty in the circumstances. It therefore accepts that the Order works, despite the omission of any reference in the operative article to the year 2000.

22. This, however, does not justify the failure fully to specify the appointed day in the Order and the Committee accordingly reports article 2 of this Order for defective drafting acknowledged by the Department.

PROTECTION OF CHILDREN ACT TRIBUNAL REGULATIONS 2000 (S.I. 2000/2821)

23. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted, contain unjustified referential legislation, and are not drafted in accordance with proper legislative practice.

24. Regulation 1(2) defines "the court" as having the same meaning as in section 66(1) of the Arbitration Act 1996. It was not clear to the Committee what that expression meant in that section, and why (instead of referring the reader to the Act) the meaning was not set out in full in that regulation. Section 66(1) refers to enforcement proceedings by the leave of "the court" without defining this term. However, section 105(1) provides that, in that Act, "the court" means the High Court or a county court, "subject to the following provisions" of the section; and subsection (2) empowers the Lord Chancellor by order to make provision allocating proceedings under the Act to the High Court or to county courts. In a memorandum printed in Appendix 7, the Department of Health explain that in section 66(1) "the court" means the High Court or any county court, since the effect of the High Court and County Courts (Allocation of Proceedings) Order 1996 (S.I. 1996/3215) is that enforcement proceedings under section 66 may be commenced in the High Court or any county court. The Department acknowledge, however, that it would have been preferable to have set out the definition in the Regulations instead of referring to the 1996 Act. In the Committee's view, the definition of "the court" in regulation 1(2), in addition to being drafted in unnecessarily referential manner, is also defectively drafted, since it is not apparent what that expression means in section 66(1) without reference to the 1996 Order. The Department also concede that, since the expression is only mentioned in paragraph (8) of regulation 32, it would have been preferable to place the definition in that regulation. Accordingly, in this respect the Committee reports the instrument for failure to comply with proper drafting practice. Indeed, as the Department accept, regulation 32(8) could appropriately have referred to a county court (which is defined in regulation 1(2)) instead of "the court", given that a costs order cannot exceed a total of £500 in relation to an application. This substitution would of course have removed the need for defining "the court". The Committee reports the definition of "the court" in regulation 1(2) as being an unjustified piece of legislation by reference, and also on the grounds that it is defectively drafted and is not drafted in accordance with proper legislative practice.

25. Paragraph (4)(b) of regulation 8 requires the Secretary of the Tribunal to notify the parties without delay of the President's decision to refuse leave and to provide them with a copy of the reasons. The Department accept that this provision is unnecessary, given that it overlaps with paragraph (5) which requires the Secretary to notify the parties without delay of the President's decisions and, if he has refused leave, of his reasons for doing so. Accordingly, the Committee reports regulation 8(4)(b) for defective drafting, acknowledged by the Department.

26. Regulation 30(2)(a) provides that an application for review of the Tribunal's decision must be made not later than ten working days after the date on which the decision was sent to the parties. It was not clear to the Committee when this period would begin to run if a copy of the decision was not sent to the parties on the same day. The Department explain that the intended effect is that the application by either party must be made not later than ten working days after the date on which the decision was sent to the second party. However, in the Committee's view, the drafting is not effective to achieve this purpose, since a party will not know whether the decision was sent to both parties on the same day and will therefore not know for certain when the period ends. The Department accept, however, that (as suggested by the Committee) the provision would be improved if it provided that an application by a party must be made not later than ten working days after the date in which a copy of the document was sent to him. The Committee reports regulation 30(2) for defective drafting.

27. The Department indicate that they intend to amend the Regulations at a suitable opportunity to take account of the points raised by the Committee on regulations 8(4)(b) and 30(2). Given that the Department accepts that it would be desirable to improve regulation 32(8) by providing simply that a costs order may be enforced in any county court (thus obviating the need for defining "the court" in regulation 1(2)), the Committee expects that this aspect should also be dealt with at the same time.

BUILDING (APPROVED INSPECTORS ETC.) REGULATIONS 2000 (S.I. 2000/2532)

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

29. These Regulations, which for the most part re-enact 1985 Regulations of the same title as subsequently amended, deal with the inspection of plans and building work. Under the parent Act (the Building Act 1984) responsibility for carrying out inspections to ensure compliance with building regulations may be entrusted to an approved inspector instead of to the local authority.

30. Regulation 4 of these Regulations enable the Secretary of State to designate a body for the purpose of approving inspectors. Where there is no designated body, regulation 3(2) provides for the Secretary of State to carry out this function. Regulation 6(4) permits, but does not require, a designated body or the Secretary of State to withdraw an approval in the case of a person who is convicted of an offence under section 57 of the Building Act 1984. This section creates offences of knowingly or recklessly giving notices or certificates under the Act which contain statements which are false or misleading. The seriousness of these offences is indicated by the option given to the prosecution to proceed in the Crown Court where the maximum penalty on conviction is an unlimited fine or a term of imprisonment for up to two years (or both).

31. The Committee was surprised that in these circumstances withdrawal of an inspector's approval was not made mandatory and asked the Department of the Environment, Transport and the Regions to explain in what circumstances it was contemplated that, not withstanding the conviction of an inspector, his approval would not be withdrawn.

32. The Department's memorandum printed in Appendix 8 gives, by way of illustration, three circumstances in which in its view approval might properly not be withdrawn in the case of an inspector's conviction.

33. Two concern cases in which the commission of the offence was due to the act of a subordinate and appropriate steps have been taken to prevent a repetition of the offence. The third concerns a case in which the offence is not thought to be sufficiently serious to warrant withdrawal of approval (because the statement in question was made recklessly rather than knowingly or was false in only a limited number of particulars).

34. The Committee, mindful that these are for the most part consolidating Regulations, accordingly reports them to the House as requiring elucidation which has been given by the Department in its memorandum.

ROAD TRAFFIC (OWNER LIABILITY) REGULATIONS 2000 (S.I. 2000/2546)

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

36. These Regulations prescribe various forms to be used in connection with the enforcement of fixed penalty offences. Section 88(2) of the Act under which they are made, the Road Traffic Offenders Act 1988, requires the Secretary of State to consult with representative organisations before making them.

37. Because the recital of powers makes no mention of any such consultations the Committee asked the Home Office whether they had been undertaken and, if so, why they were not mentioned in the recital of powers as required by paragraph 2.26 of Statutory Instrument Practice.

38. The Department's memorandum printed in Appendix 9 confirms that it did indeed consult with representative organisations and accepts that this should have been recited in the preamble to these Regulations.

39. The Committee accordingly reports the Regulations for defective drafting of the preamble acknowledged by the Department.

RAILWAYS (SAFETY CASE) REGULATIONS 2000 (S.I. 2000/2688)

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

41. These Regulations, which reproduce with amendments similar Regulations made in 1994, prohibit railway undertakings from operating, or permitting the operation of, a train or station unless the relevant undertaking has submitted to the Health and Safety Executive ("the Executive") a safety case acceptable to the Executive.

42. Regulation 5(2) requires an operator of a train or station to submit his safety case simultaneously to the Executive and to the controller of the relevant railway infrastructure. Where the operator and the infrastructure controller agree to modify the safety case, regulation 5(4)(a) requires the latter to send the modified case to the Executive. Regulation 5(7)(c) then provides that, where the Executive accepts a safety case which differs from that submitted by the operator under regulation 5(2), or, where paragraph (3)(a) applies, under that paragraph, the Executive must notify the infrastructure controller of the changes made. As the reference to paragraph (3)(a) appeared to make no sense, the Committee asked the Department of the Environment, Transport and the Regions whether the reference should have been to paragraph (4)(a). The Department, in its memorandum printed in Appendix 10, confirms that the reference should have been to paragraph (4)(a) and undertakes to amend regulation 5(7)(c). The Committee accordingly reports regulation 5(7)(c) for defective drafting acknowledged by the Department.

43. Regulation 17(1) and (3) permit the Executive, or as the case may be the Secretary of State for Defence, to grant exemptions from the requirements or prohibitions imposed by these Regulations subject, in both cases, to any Community obligation of the United Kingdom.

44. As the Committee observed in its Third Report (Session 1997-98), such a general saving is unnecessary as the generality of the words conferring the power to grant exemptions must be regarded as implicitly restricted so as to exclude an exercise of this power inconsistently with the United Kingdom's Community obligations.

45. The Committee therefore asked the Department to explain why this general saving had been included. The Department's memorandum acknowledges that it was included by reason of oversight, for which it apologises. The Committee accordingly reports these Regulations for defective drafting of regulation 17(1) and (3) 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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