Statutory Instruments Second Report



SECOND 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.

THE HIGHWAYS NOISE PAYMENTS AND MOVABLE HOMES (ENGLAND) REGULATIONS 2000 (S.I. 2000/2887)

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

3. These Regulations are made under section 20A of the Land Compensation Act 1973 (inserted by the Planning and Compensation Act 1991). They allow for payments to be made to persons living in caravans, and other structures which are not buildings, affected by noise caused by the construction or use of public works. Such payments can be made only where certain qualifying conditions are met.

4. Regulation 3(2)(a) states that one of the qualifying conditions is whether "the relevant noise level exceeds the prevailing noise level by at least 1dB(A) and is not less than the specified level". No definition of "specified level" is however given in the Regulations. The Committee therefore asked the Department to explain this term.

5. The Department, in its memorandum printed in Appendix 1, confirms that the appropriate definition of "specified level" was unfortunately omitted from the Regulations. The Department apologises for its error and states that relevant guidance will explain what the specified noise level is; the Department also advises the Committee that amending Regulations will be made to rectify the omission. The Committee therefore reports regulation 3(2)(a) for defective drafting, acknowledged by the Department.

HIGHWAYS NOISE PAYMENTS AND MOVABLE HOMES (ENGLAND) (AMENDMENT) REGULATIONS 2000 (S.I. 2000/3086)

6. The Committee draws the attention of both Houses to these Regulations on the ground that they fail to comply with Statutory Instrument Practice.

7. These Regulations correct defects in the Highways Noise Payments and Movable Homes (England) Regulations 2000 (S.I. 2000/2887) in two respects but bear no headnote (as required by Statutory Instrument Practice) making clear that all copies of these amending Regulations are to be available free of charge to all known recipients of the earlier Regulations.

8. The Committee asked the Department to explain this omission. The Department admits in its memorandum, printed in Appendix 2, that the omission of the headnote was a regrettable oversight. The Committee therefore reports these Regulations for failing to comply with proper statutory instrument practice.

DISABILITY DISCRIMINATION ACT 1995 (TAXIS) (CARRYING OF GUIDE DOGS ETC.) (ENGLAND AND WALES) REGULATIONS 200 (S.I. 2000/2990)

9. The Committee draws the attention of both Houses to these Regulations on the grounds that they are defectively drafted and that regulation 2(2) contains an unexpected use of the relevant enabling power.

10. Section 37 of the Disability Discrimination Act 1995 imposes a duty on taxi drivers to carry, without additional charge, a guide dog or hearing dog accompanying a disabled user of the taxi, unless the licensing authority has exempted the driver on medical grounds. An exemption is only effective, however, if the prescribed notice of exemption is exhibited on the taxi in the prescribed manner. The Regulations prescribe the form of an exemption notice and the manner in which it is to be exhibited. Regulation 1(1) provides for regulation 2(1) to come into force on 1 December 2000 and for all other regulations to come into force on 31 March 2001. The Committee asked the Department of the Environment, Transport and the Regions whether it ought to have been made explicit that regulation 1 itself comes into force on 1 December 2000. The Department, in its memorandum printed in Appendix 3, accepts that this should have been made explicit and the Committee accordingly reports regulation 1(1) for defective drafting, acknowledged by the Department.

11. The form of notice prescribed by regulation 2(1) contains on the front details of the driver's exemption and on the back a warning that only the driver named on the front may use the notice. Regulation 2(2) requires the notice to be exhibited by affixing it either (a) in a prominent position on the dashboard, facing upwards or (b) to the windscreen, facing outwards. In relation to the first method the Committee asked the Department to explain what is meant by "facing upwards" and whether (unlike the second method) that method has the effect that the back of the notice will not be visible, and, if so, why the regulation differentiates in this way.

12. In is memorandum, the Department confirms that "facing upwards" means that the front side of the notice must face away from the dashboard and that the effect of using this method (unlike the alternative) is that the back of the notice will not be visible when affixed. The Department says that the back of the notice contains a simple warning to the driver, which should have been read before affixing the notice and that permitting a notice to be exhibited on the dashboard will assist display and removal where different people drive the taxi.

13. It is not apparent from the Department's explanation why affixation on the dashboard will more readily facilitate removal of a notice than will affixation to the windscreen, nor how the warning, which appears to be directed also at drivers other than the exempted one, will be effective whilst the notice is affixed in a manner in which the warning is not visible. The Committee notes that the legislation does not appear to require the removal of notices when the exempted driver is not driving. In the Committee's view it is an unexpected use of the enabling power to prescribe a form of notice with material on both sides but then to prescribe that it be exhibited in a way in which only one side is visible, and it reports regulation 2(2) on those grounds.

JUDICIAL PENSIONS (SPECIFICATION OF ALTERNATIVE SCHEME) REGULATIONS 2000 (S.I. 2000/2984)

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

15. These Regulations make provision when a pension sharing order is made in respect of the rights of any person under a judicial pension scheme (other than that constituted under the Judicial Pensions and Retirement Act 1993), and when the scheme in question is closed to new members, for the person in whose favour the order is made to acquire rights under the scheme constituted under the Judicial Pensions and Retirement Act 1993.

16. In regulation 3(2) there is a reference to paragraph 2(5) of Schedule 5 to the Welfare Reform and Pensions Act 1999. As this reference appeared to make no sense in the context of the Regulations, the Committee asked the Department to verify it. The Department, in its memorandum in Appendix 4, states that the reference should have been to paragraph 2(3) of Schedule 5 to the 1999 Act: the erroneous reference was a typing error in the signed copy of the instrument and will be corrected at the earliest opportunity. The Committee therefore reports regulation 3(2) for defective drafting, acknowledged by the Department.

RURAL DEVELOPMENT GRANTS (AGRICULTURE AND FORESTRY) REGULATIONS 2000 (S.I. 2000/2907)

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

18. These Regulations, made under section 2(2) of the European Communities Act 1972, enable the Minister of Agriculture, Fisheries and Food to provide financial assistance towards certain operations approved by him which promote rural development. Regulation 5 provides for the Minister to refuse an application or approve it, whether wholly or in part and unconditionally or subject to conditions. The regulation also permits him to vary an approval by varying, or imposing, a condition.

19. Regulation 5(3) requires the Minister, where he refuses to approve an application or varies an approval, to give written notice to the applicant or beneficiary of his decision and the reasons for it and, in sub-paragraph (b), to give the applicant or beneficiary an opportunity to make written representations within such time as the Minister considers reasonable, and in sub-paragraph (c), to consider any such representations. Given that paragraph 5(3) applies after the Minister has made his decision, the Committee asked the Ministry of Agriculture, Fisheries and Food to explain the purpose of subparagraphs (b) and (c).

20. The Ministry, in its memorandum printed in Appendix 5, argues that the purpose of those paragraphs is to indicate that the Minister's decision is essentially provisional in nature and that the difference between the Minister being minded to reach a conclusion and then reaching a different one in the light of representations made, on the one hand, and taking and then "re-taking" his decision, on the other, is a matter of semantics. The practical outcome, according to the Ministry's memorandum, is the same.

21. The Committee does not find the Ministry's argument convincing. A decision has legal effects: an indication of the Minister's intention does not. Under the general law the Minister is required to take into account all relevant considerations before making a decision. In so far as regulation 5(3)(b) is intended to refer to representations relating to matters existing before the decision was made, these should have been taken into account before the decision was made. In so far as the regulation refers to representations relating to subsequent matters there is nothing to prevent the applicant from making at any time a further application for approval or the variation (or further variation) of a condition. However, the provision in regulation 5(3)(b) allowing the Minister to impose a time limit within which representations may be made is inconsistent with this, and potentially misleading.

22. In the case of a variation, the new, or varied, condition takes effect from the date the decision becomes effective and therefore must be observed unless and until varied by a further decision. It is not correct to say that the decision imposing the variation is not capable of causing any greater prejudice to the operator than an indication that the Minister is minded to impose it. In its memorandum the Ministry indicates its intention not to enforce a condition in these circumstances until any representations have been considered and a decision made as to whether any further variation is necessary. The Committee does not consider this to be satisfactory.

23. A more satisfactory approach—and one more closely reflecting the intention to defer making a definitive refusal or variation until the person concerned has had an opportunity to make representations and the Minister has considered them—would have been to have required the Minister to take the steps specified in regulation 5(3) before making his decision, as is provided in regulation 13(4), dealing with decisions to withdraw or recover assistance. The Committee therefore reports regulation 5(3)(b) and (c) for defective drafting.


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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