Joint Committee on Statutory Instruments First Report



FIRST 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 Department of Trade and Industry in connection with the Cosmetic Products (Safety) (Amendment) (No. 2) Regulations 2000 (S.I. 2000/2765) is printed in Appendix 1.

THE IMMIGRATION AND ASYLUM APPEALS (PROCEDURE) RULES 2000 (S.I. 2000/2333)

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

4. These Rules prescribe the procedure to be followed for appeals made under Part IV of the Immigration and Asylum Act 1999. Rule 5(2) defines "appellant" in Part II of the Rules as a person appealing against an "immigration decision", an expression also used elsewhere in the Rules, but not defined. The Committee asked the Lord Chancellor's Department to explain the meaning of this expression.

5. The Department, in its first memorandum printed in Appendix 2, explains that "immigration decision" means any decision concerning a person's removal from the United Kingdom, or his entitlement to be admitted to, or reside in, the United Kingdom, against which there is a right of appeal to an adjudicator. The Department further explains that, as rule 5(1) makes it clear that Part II of the Rules applies to appeals to adjudicators, the meaning of "immigration decision" was thought to be clear and so did not need defining. The Department will, however, consider providing a definition at the next opportunity. The Committee considers that the expression requires elucidation and that it would be helpful to include a definition in future. It accordingly reports the Rules as requiring the elucidation of the expression "immigration decision" provided by the Department's memorandum.

6. Rule 7(2), in effect, confers a general power on an adjudicator to extend the time for giving notice of appeal where the conditions set out in that rule are met. Rule 12(5), which applies where the same question falls to be determined as a preliminary issue, repeats the power with the additional restriction that time may not be extended where a deportation order is in force in respect of the appellant. The Committee therefore asked the Department to explain why these provisions are drafted differently and why rule 12(5) does not refer to rule 7(2).

7. In its second memorandum printed in Appendix 3, the Department explains that these Rules, which relate to both immigration and asylum matters, supersede the Immigration Appeals (Procedure) Rules 1984 and the Asylum Appeals (Procedure) Rules 1996. Rule 12(5) is derived from rule 11(4) of the 1984 Rules, whereas rule 7(2) is derived from rule 41(2) of the 1996 Rules. Those provisions were drafted differently from each other. As a result, there is an inconsistency between rules 7(2) and 12(5) of these Rules. The Committee therefore reports rules 7(2) and 12(5) for defective drafting, acknowledged by the Department.

8. Rule 22(4), which prohibits the Immigration Appeal Tribunal from relying on any evidence which has not been disclosed to all parties, is expressed to be subject to rule 38. That rule requires, subject to paragraph 6 of Schedule 4 to the 1999 Act (which provides for certain hearings to be in private), that, when the appellate authority takes into consideration documentary evidence, every party is to be given an opportunity of inspecting that evidence and taking copies of it (if not already provided). It seemed to the Committee that rule 22(4) could not have been intended to be subject to rule 38, but may have been intended to be subject to paragraph 6 of Schedule 4 to the 1999 Act, referred to in rule 38. It therefore asked the Department whether this was the case.

9. In its first memorandum, the Department acknowledges that rule 22(4) should have been made subject to paragraph 6 of Schedule 4 to the 1999 Act and not to rule 38. The Committee accordingly reports rule 22(4) for defective drafting, acknowledged by the Department.

10. Where a party has failed to comply with the Rules or a direction given under them, rule 33(1) allows the appellate authority to dispose of an appeal in accordance with rule 33(2), where the authority is satisfied in all the circumstances "that it is necessary to have regard to the overriding objective in rule 30(2)". The Committee asked the Department to explain the meaning of those words. In its first memorandum, the Department acknowledges that it is always necessary for the appellate authority to have regard to that overriding objective and that the words quoted are otiose. The intended meaning was that the appellate authority should be satisfied that, in order to further the overriding objective, it should dispose of the appeal in accordance with rule 33(2). The Committee accordingly reports rule 33(1) for defective drafting, acknowledged by the Department.

IMMIGRATION SERVICE TRIBUNAL RULES 2000 (S.I. 2000/2739)

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

12. These Rules, which are made under paragraph 7 of Schedule 7 to the Immigration and Asylum Act 1999, govern the practice and procedure to be followed by the Immigration Services Tribunal, established by section 87 of that Act, in respect of appeals against decisions of the Immigration Services Commissioner concerning the registration and exemption of immigration advisers and the consideration of disciplinary charges brought by the Commissioner against immigration advisers. Paragraph 7(4) of Schedule 7 to the 1999 Act requires rules made under paragraph 7 to make provision for any person appealing to the Tribunal or otherwise subject to its jurisdiction to be entitled to legal representation. Rule 21 of the Rules makes such provision as respects the hearing of an appeal or charge, but no such provision is made in respect of various interlocutory applications for which provision is made by rules 9, 10, 11 and 15. The Committee therefore asked the Lord Chancellor's Department what justified the absence of such provision in these cases.

13. In its memorandum printed in Appendix 4, the Department explains that, as a person can only be subject to the jurisdiction of the Tribunal in respect of an appeal or charge, it had considered that the requirement in paragraph 7(4) of Schedule 7 was to provide for legal representation for the hearing of the appeal or charge. But, on reflection, it accepts that such representation should also be available for interlocutory hearings and will consider how to amend the Rules to provide for this.

14. The Committee accordingly reports the Rules for defective drafting, acknowledged by the Department, and recommends that amending Rules are made as soon as practicable.

GENETICALLY MODIFIED ORGANISMS (CONTAINED USE) REGULATIONS 2000 (S.I. 2000/2831)

15. The Committee draws the special attention of both Houses to these Regulations on the grounds that they are defectively drafted, require elucidation, and contain an unexpected use of powers.

16. These Regulations, which revoke and replace similarly entitled 1992 Regulations (as amended) and certain provisions of which implement certain EU directives, make provision to protect individuals and the environment from risks arising from activities involving the contained use of genetically modified micro-organisms and, in the case of individuals, from such risks where the organisms are not micro-organisms. Regulation 9 prohibits the first use of premises for the purpose of undertaking an activity involving genetic modification unless the user has notified, and provided certain information to, the competent authority. Regulations 10 to 12 prohibit the undertaking of certain activities involving genetic modification without notification of, the provision of certain information to, and in certain circumstances the consent of, the competent authority.

17. Where an activity is to take place in both England and Scotland, regulation 13(1)(b) requires a notification under regulation 10(1), 11(1) or 12(1) to be made to the joint competent authority (that is, the competent authority as regards England and Wales and the competent authority as regards Scotland acting jointly). The Committee asked the Department of the Environment, Transport and the Regions to explain why such a notification is not required in respect of an activity which is to take place in both Wales and Scotland.

18. In its memorandum printed in Appendix 5, the Department states that the purpose of this provision is to deal with the situation where an activity is to be carried on in premises which straddle the border between England and Scotland and which are thus the subject of a notification to the joint competent authority pursuant to regulation 13(1)(a). In the Committee's view, however, there is nothing in regulation 13(1)(b) limiting its effect to those circumstances with the consequence that it does not reflect the intended meaning. The Committee accordingly reports regulation 13(1)(b) for defective drafting.

19. Regulation 15(2) requires a person who has submitted a notification under any of regulations 9 to 12 ("a notifier") to inform the competent authority of certain changes in the information supplied or in the circumstances in which the activity in question is undertaken. Paragraph (g) of regulation 15(2) requires details to be provided of any use made of additional premises in connection with a particular activity carried on by the notifier at more than one site, "provided that" he has submitted a notification under regulation 9(1) in respect of the additional premises. The Committee asked the Department to explain the purpose and effect of the proviso.

20. The Department, in its memorandum, says that the purpose of regulation 15(2)(g) is to allow a permitted activity to be undertaken at an additional site without the need for a further notification under regulation 10, 11 or 12, "provided that"—by which the Committee understand the Department to mean "on condition that"—the additional site is notified under regulation 9(1). It appears to the Committee that this intention is not clearly conveyed by regulation 15(2)(g), which appears to provide that the additional notification is required only where regulation 9(1) has been complied with. The intention would have been made clear if regulation 15(2)(g) had been expressed to be without prejudice to regulation 9(1). The Committee therefore reports regulation 15(2)(g) for defective drafting.

21. Paragraph (3)(a) of regulation 15 requires a notifier to provide information to the competent authority where he makes changes to his premises or activity which may have significant consequences for the risks arising from the activity. Where the change would require a notification to be made under regulation 11(1), paragraph (4) prohibits the making of the change until the requirements of regulation 11 have been satisfied. Paragraph (5) then disapplies paragraph (4) where the activity is carried on with a consent granted under regulation 11(1). Given that the effect of regulation 11(1) is to prohibit a person from undertaking any activity in class 3 or 4 (as defined for the purposes of the Regulations) without his having submitted a notification and received consent under that regulation, the Committee asked the Department to explain the purpose and effect of paragraphs (4) and (5) of regulation 15.

22. The Department, in its memorandum, states that the effect of regulation 15(4) is to prohibit the making of a change which would attract the requirements of regulation 11(1) until those requirements have been met, and that the effect of regulation 15(5) is to dispense with those requirements where, for example, a person carrying on a class 3 activity wishes to make a change bringing that activity within class 4. The Committee considers that regulation 15(5) does not adequately implement the intention, since it disapplies only regulation 15(4) and not regulation 11 itself. The intended result would have been achieved, and achieved more simply, if regulation 15(3) had been expressed to be without prejudice to regulation 11, and regulation 15(5) had disapplied regulation 11. Regulation 15(4) could then have been omitted. The Committee therefore reports regulation 15(5) for defective drafting.

23. Regulation 29 makes provision for appeals against certain decisions of the competent authority. Regulation 29(8)(b)(ii) provides for appeals relating to "(aa) the undertaking of an activity....in both England and Scotland....". The Committee asked the Department to explain why this provision does not provide for appeals in respect of the undertaking of an activity in both Wales and Scotland. The Department, in its memorandum, states that regulation 29(8)(b)(ii) is aimed at cases where a notification has been submitted to the joint competent authority under regulation 13(1). As the Committee has noted above, regulation 13(1)(b) is defectively drafted in not being limited to cases in which an activity takes place in premises which straddle the border between England and Scotland. That defect thus similarly affects regulation 29(8)(b)(ii) and the Committee accordingly reports that provision for defective drafting.

24. Regulation 30 extends the application of the Regulations to premises and activities outside Great Britain. Given that "competent authority" is defined in regulation 2(1) separately for England and Wales, on the one hand, and Scotland, on the other hand, the Committee asked the Department to identify that authority in relation to premises and activities outside Great Britain. The Department, in its memorandum, acknowledges that this is not made clear and undertakes to amend the Regulations at the earliest opportunity. The Committee accordingly reports regulation 30 for defective drafting.

25. Paragraphs 1(b), 2(b) and 3(b) of Schedule 6 require a notification under regulations 10(1), 11(1) and 12(1) respectively to contain the centre number allocated by the competent authority in respect of the premises at which the activity is to be undertaken and the date of the notification required by regulation 9(1) relating to those premises. Given that the third, fifth, seventh and ninth entries in Schedule 9 to the Regulations (which specifies the fees payable in respect of notifications and applications under the Regulations) contemplate simultaneous notifications under regulation 9(1) and regulation 10(1), 11(1) or 12(1), the Committee asked the Department to explain how those requirements of Schedule 6 could be met where such a simultaneous notification is made. The Department, in its memorandum, explains that it is intended that before an applicant submits a simultaneous notification he will obtain the centre number from the competent authority, so that this information can then be included in his notification, and that guidance making this procedure clear will be issued. The Committee accordingly reports paragraphs 1(b), 2(b) and 3(b) of Schedule 6 as requiring the elucidation provided by the Department's memorandum.

26. Schedule 11 makes detailed provision for appeals. Paragraph 9(4) provides that a body corporate may appear by its clerk or secretary or any other officer appointed for the purpose, or by counsel or a solicitor. Paragraph 9(5), having provided that an individual may appear himself or be represented by counsel or a solicitor, provides that he may be represented by any other person. Given the provisions of the Courts and Legal Services Act 1990 and paragraph 9(5), the Committee asked the Department to explain why a body corporate is permitted to appear only as specified in paragraph 9(4). The Department, in its memorandum, indicates that the provisions of Schedule 11 are based on the Health and Safety Licensing Appeals (Hearing Procedure) Rules 1974 (and their Scottish equivalent). In the Committee's view the fact that similar provisions were made in the 1974 Rules does not necessarily justify their reproduction in these Regulations. Apart from developments following the Courts and Legal Services Act 1990, there seems no good reason why a body corporate should not have the same right as an individual to be represented by any person of its choosing, and the Committee accordingly reports paragraph 9(4) for making an unexpected use of the enabling powers.

27. Paragraph 9(6) of Schedule 11 purports to confer power on the person hearing an appeal to allow one or more persons to appear for the benefit of some or all persons having a similar interest in the subject matter of the hearing. As there is nothing to prevent persons with a similar interest from being represented before any court or tribunal by the same person or persons if they so choose and the tribunal does not object, the Committee asked the Department to explain the purpose and effect of paragraph 9(6). In its memorandum, the Department repeats that this provision is based on the 1974 Rules and adds that the provision clarifies what the person hearing the appeal may allow. In the Committee's view paragraph 9(6) adds nothing to the position obtaining without that paragraph and for that reason reports that paragraph for failing to conform to proper drafting practice.

THE SOCIAL FUND WINTER FUEL PAYMENT (AMENDMENT) REGULATIONS 2000 (S.I. 2000/2864)

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

29. These Regulations which are made under the Social Security Contributions and Benefits Act 1992, amend the Social Fund Winter Fuel Payment Regulations 2000 ("the principal Regulations").

30. Regulation 2(a)(ii)(bb) substitutes "resides" for "lives" in regulation 1(3) of the principal Regulations. The word "lives" appears twice in regulation 1(3): once in sub-paragraph (a) and once in sub-paragraph (b). The Committee asked the Department of Social Security to explain whether the substitution is intended to apply in the first, in the second or in both places where it appears. In its memorandum printed in Appendix 6, the Department states that it is intended to apply only in the first place, and that the intention is clear when the amendments and the principal Regulations are read as a whole. The Committee agree that the intention is reasonably easy to ascertain, but considers that the reader of what should be a simple instrument ought not to be put to the trouble of examining the overall context when a more careful amendment would have been possible. The amendment should have made it clear that the substitution was to take effect only in the first place where "lives" appears, and the Committee accordingly reports regulation 2(a)(ii)(bb) for defective drafting, acknowledged by the Department.

31. Regulation 2(a)(iii) inserts a new regulation 1(3A) in the principal Regulations. This provides that, for the purposes of regulation 1(3)(a)(i), paragraph 2A(3) of Schedule 2 to the Income Support Regulations 1987 (applicable amounts) shall apply with two specified modifications. In order to make sense of this amendment, the reader is required not only to look at these Regulations, the principal regulations, the 1987 Regulations and the instruments which amend the 1987 Regulations, but also to perform the exercise modifying the 1987 Regulations as amended and applying them to the principal Regulations. It appeared to the Committee that it would have been no more difficult to have amended the principal Regulations by inserting a provision in the terms of an appropriately modified version of paragraph 2A(3) of Schedule 2 to the 1987 Regulations. Not only would this have been easier for the reader, it would have led to an increase in the length of these Regulations, if any, of no more than a line or two and would certainly not have added to the cost to the purchaser of the instrument. The Committee asked the Department why it had not done this. The Department, in its memorandum, explains that the principal Regulations already rely on the detailed provisions of the 1987 Regulations, and it seemed more consistent with that approach to apply a modified version rather than insert one. The Committee notes that, although the principal Regulations do indeed refer to the 1987 Regulations and define some expressions by reference to their meaning in those Regulations, they do not generally apply provisions of the 1987 Regulations with modifications, as has been done by this instrument. Even if they had, the Committee does not accept that this would justify what in this case amounts to unnecessarily referential drafting, on which ground it reports regulation 2(a)(iii).

THE POLICE AND CRIMINAL EVIDENCE (APPLICATION TO POLICE OMBUDSMAN) ORDER (NORTHERN IRELAND) 2000 (S.R. 2000/314)

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

33. This Order, which is made under section 56(2) of the Police (Northern Ireland) Act 1998, applies, with modifications, certain provisions of the Police and Criminal Evidence (Northern Ireland) Order 1989 to officers of the Police Ombudsman for Northern Ireland.

34. Section 56(2) of the 1998 Act allows the Secretary of State, by order, to apply any provision of the 1989 Order which relates to the investigation of offences conducted by police officers (within the meaning of that Order) to investigations under section 56 conducted by persons who are not police officers. Article 3(1) of this Order provides for certain provisions of the 1989 Order which relate to the investigation of offences conducted by police officers or to persons detained by the police to apply to investigations conducted by officers of the Ombudsman.

35. The Committee asked the Northern Ireland Office to identify the power under which article 3(1) applies provisions of the 1989 Order which relate to persons detained by the police and to identify those provisions. In its memorandum printed in Appendix 7, the Department acknowledges that the reference to persons detained by the police is incorrect and that none of the provisions cited relate to detained persons, and it undertakes to amend the Order. The Committee accordingly reports article 3(1) for defective drafting, acknowledged by the Department.

36. Article 3(2) provides that where in the 1989 Order any act or thing is to be done by a constable or police officers of a rank specified in column 1 of Part II of Schedule 2, that act or thing shall be done by an officer [of the Ombudsman] of at least the grade specified in column 2 of that Schedule. The Committee asked the Department to explain the reference to Part II of Schedule 2, as the Schedule is not divided into parts. In its memorandum, the Department acknowledges that the reference is erroneous and undertakes to remove it. The Committee accordingly reports article 3(2) for defective drafting, acknowledged by the Department.

37. The provisions of article 3(2) are substantially reproduced before the table in Schedule 2. The Committee asked the Department to explain their purpose in Schedule 2. The Department, in its memorandum, acknowledges that the words in the Schedule are repetitious and undertakes to remove them. The Committee accordingly reports Schedule 2 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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