Joint Committee on Statutory Instruments Third Report



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 from the Home Office in relation to the Firearms (Variation of Fees) Order 2000 (S.I. 2000/3148) is printed in Appendix 1.

COUNTRYSIDE STEWARDSHIP REGULATIONS 2000 (S.I. 2000/3048)

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

4. These Regulations, which replace similarly named 1998 regulations, provide for the making of payments to persons who enter into agreements with the Minister of Agriculture, Fisheries and Food under which the person is to carry out certain activities on his land. Regulation 3(1) confers power on the Minister to enter into an agreement with an applicant, and regulation 3(2) defines "agreement" "for the purposes of paragraph (1)". Regulation 2(1) defines "agreement" in the Regulations, unless the context otherwise requires, as having the meaning given to it by regulation 3(2). However, it appeared to the Committee that some, and possibly all, of regulations 4 to 9 were intended to apply to agreements entered into under earlier regulations. The Committee therefore asked the Ministry of Agriculture, Fisheries and Food whether this was the case and, if so, why it was not made clear either in the definition of "agreement" in regulation 2(1) or in some other way.

5. In its memorandum, printed in Appendix 2, the Department confirms that the term "agreement" is not confined to agreements made under these Regulations and submits that this is apparent from other provisions of the Regulations. Whilst the Committee accepts that some of the provisions of the Regulations necessarily imply their application to agreements made under earlier regulations—hence the Committee's question—it does not consider the definition of "agreement" in regulation 2(1) to be adequate to convey the intended meaning. Regulation 3(2) defines "agreement" only for the purposes of regulation 3(1), which confers power on the Minister to enter into an agreement. The expression is therefore defined as an agreement which the Minister may enter into, or has entered into, in pursuance of that provision. Given that the Regulations are intended to apply both to agreements entered into before the Regulations come into force and to those entered into under the Regulations, regulation 2(1) could and should have defined "agreement" in terms such as "an agreement as described in regulation 3(2), whether made before or after the coming into force of these Regulations". The Committee accordingly reports the definition of "agreement" in regulation 2(1) for defective drafting and recommends that the Ministry amend it appropriately.

6. Regulation 3(3)(b) provides that the Minister may only enter into an agreement which, in respect of an activity specified in column 1 of Part I, II or III of the Schedule, does not require the Minister to make payments in excess of the maxima specified in column 2 thereof. Regulation 3(3)(c), however, further requires that an agreement must not require the Minister to make any payments in respect of any activity not specified in Part I or II of the Schedule. The Committee asked the Department to explain this discrepancy. In its memorandum, the Department acknowledges that regulation 3(3)(b) fails to make a sufficiently clear distinction between "activities", which are specified in Parts I and II of the Schedule, and the matters covered by Part III, which are not "activities" as such but are other matters for which payments may be made under the Regulations. Regulation 3(3)(c) is not intended to apply to Part III matters. The Department accepts the Committee's criticism and undertakes to amend this provision at the next opportunity. The Committee accordingly reports regulation 3(3) for defective drafting acknowledged by the Department.

7. Regulation 5 (b) makes a beneficiary's entitlement to payment subject to the condition that he has complied with the requirements of regulation 7. Regulation 7 makes detailed provision about rates of payment in different cases and it was not apparent to the Committee how these provisions constituted requirements to be complied with by the beneficiary. It therefore asked the Department to explain this. In its memorandum, the Department explains that the reference should be to regulation 8, which imposes requirements on applicants. The Committee therefore reports regulation 5(b) for defective drafting acknowledged by the Department.

BATTERIES AND ACCUMULATORS (CONTAINING DANGEROUS SUBSTANCES) (AMENDMENT) REGULATIONS 2000 (S.I. 2000/3097)

8. The Committee draws the attention of both Houses to these Regulations on the grounds that they do not conform to proper drafting practice and do not properly implement the relevant Community directive.

9. These Regulations, which are made under section 2(2) of the European Communities Act 1972, amend Regulations made in 1994. Regulation 2(e) inserts a footnote in the 1994 Regulations. As a footnote does not form part of an instrument the insertion of a footnote has no legal effect and does not constitute an exercise of the enabling power. The Committee therefore asked the Department of Trade and Industry to explain the legal effect of regulation 2(e).

10. The Department, in its memorandum printed in Appendix 3, acknowledges that regulation 2(e) has no legal effect at all, but states that the footnote was inserted in response to a point made in the Committee's report of the 1994 Regulations. The Department also refers to precedents in primary legislation which amend headings and sidenotes and argues that, as these provide Parliamentary authority for amending primary legislation which has no legal effect, it is appropriate, by analogy, to amend or insert footnotes in secondary legislation. The Department also identifies a precedent (The Electricity and Pipe-line Works (Assessment of Environmental Effects) (Amendment) Regulations 1997, S.I. 1997/629) for the insertion of a footnote in secondary legislation.

11. In the Committee's view, the fact that it reported the 1994 Regulations (in this respect) for the elucidation provided by the Department's memorandum cannot justify the purported amendment made by regulation 2(e). As for the precedents relied on, headings and sidenotes in primary legislation form part of the legislation, and the Department's analogy is false. The fact that this instrument contains a defect which is similar to one contained in a previous instrument does not alter the position. The Committee accordingly reports regulation 2(e) on the ground that, by introducing non-legislative material, it does not conform to proper drafting practice.

12. Regulation 2(f) of these Regulations substitutes a new regulation 4(3) of the 1994 Regulations. Regulation 4(3), as originally enacted, provided for a time-limited derogation from the requirements of that regulation, in purported reliance on article 1 of Commission Directive 93/86/EEC, for batteries and accumulators manufactured in, or imported into, the Community before 1 August 1994. The Directive, however, allowed the derogation in respect of batteries or accumulators so imported or manufactured before 1 January 1994. The Committee (in its 10th Report for the Session 1993-94) reported the 1994 Regulations on the ground that regulation 4(3) failed to implement the Directive properly, as well as reporting them on a number of other grounds. The new regulation 4(3) substituted by regulation 2(f) of these Regulations exempts batteries and accumulators marketed in Great Britain on or after 18th December 2000 which were manufactured in, or imported into, the Community on or after 1st January 1994. The Committee asked the Department whether "on or after" in either or both places was intended to read "on or before", and in any case what provision of Community law authorised the provision.

13. The Department, in its memorandum, confirms that regulation 4(3) is not authorised by Community law and that, as the derogation was time-limited, regulation 4(3) should have been deleted, together with the reference to that paragraph in regulation 4(1). The Department undertakes to correct the error as soon as possible but suggest that businesses are unlikely to be affected, since it is very unlikely that any batteries produced before 1st January 1994 remain on the market. The Committee therefore reports regulation 2(f) for failing to implement the Community Directive properly. In view of the extensive criticisms of the 1994 Regulations in the Committee's earlier Report, the Committee finds it particularly disappointing to have to report the Department's failure to deal with the amendments properly in the present Regulations.

PRIVATE HIRE VEHICLES (LONDON) (OPERATOR'S LICENCES) REGULATIONS 2000 (S.I. 2000/3146)

14. The Committee draws the attention of both Houses to these Regulations on the grounds that, in part, they do not conform to proper drafting practice, that they contain an unexpected use of powers, and are—in part—of doubtful vires

15. These Regulations, which are made under the Private Hire Vehicles (London) Act 1998, make provision for the licensing of private hire vehicle operators in London. Regulation 3(a) requires applications for the grant or variation of licences to be made on a form supplied by the licensing authority and to include information and declarations required by the form. Section 15(1) of the 1998 Act requires applications for licences to be in such form, and to include such information and declarations as the [licensing authority] requires (similar provision is made as regards applications for the variation of licences by section 18(2) of the Act). Given that provision, the Committee asked the Department of the Environment, Transport and the Regions to explain the purpose and effect of regulation 3(a).

16. The Department, in its memorandum printed in Appendix 4, acknowledges that regulation 3(a) is not strictly necessary and states that it was included to provide practical assistance to the reader and reduce the administrative burden on the licensing authority. In the Department's view the inclusion of this provision will obviate the need to refer back to the primary legislation or to enquire as to the form in which applications must be made. The Committee does not find the Department's explanation at all convincing. It is not appropriate to duplicate the requirements of primary legislation in secondary legislation (however convenient that might be thought to be to the reader). Nor is it clear in this case how doing that will reduce the burden on the licensing authority, which can operate in exactly the same way under the primary legislation as it is intended it should do under regulation 3(a). The Committee therefore reports regulation 3(a) on the ground that, by replicating the provisions of the enabling Act, it does not conform to proper drafting practice.

17. Section 4(3)(b) of the 1998 Act requires a London private hire vehicle operator to keep at each operating centre a record in the prescribed form of the private hire bookings accepted by him there. Section 4(4) requires an operator who ceases to use an operating centre to preserve any record he is required by section 4 to keep there for such period as may be prescribed. Section 4(5) makes it an offence to contravene any provision of section 4.

18. Regulation 9(6) (made under section 3(4) of the Act) makes it a condition of every operator's licence to preserve records in accordance with regulation 16(1)(a). That regulation requires the operator to preserve the particulars of every private hire booking entered in the records required to be kept by section 4(3)(b) for 6 months from the date on which the booking was accepted. The condition imposed by regulation 9(6) therefore purports to permit an operator to dispose of his records after 6 months even if the operating centre in question is still being used by him. If he does so, although he will not be in breach of the condition, he will commit an offence under section 4(5) of the Act. The Committee asked the Department to explain why this condition was imposed, given the terms of section 4 of the Act.

19. The Department, in its memorandum, draws attention to the administrative burden involved in retaining indefinitely details of every booking made at an operating centre and suggests Parliament cannot have intended to require this. The Department therefore considered it permissible to rely on the powers in section 32(2)(c) of the Act (to make incidental, consequential, transitional and supplemental provision) to include the time limit referred to in regulation 16(1)(a) on the basis that the reference in section 4(4) of the Act to the record required to be kept by virtue of section 4(3)(b) should be construed as a reference to that record in so far as it consisted of the prescribed particulars of bookings that remained in it by virtue of the time limit.

20. The Committee sympathises with the Department's aim, but is unable to accept its argument. If section 32(2)(c) can be prayed in aid at all, it would have to be used to qualify the obligation in section 4(3)(b). But the Regulations do not do this: and there must be a doubt whether the powers in section 32(2)(c) are extensive enough to allow it.

21. What the Regulations do is impose (under section 3(4) not section 32(2)(c)) a condition in a licence requiring records to be kept for 6 months. Although an operator may not contravene the condition if he disposes of his records after 6 months, he will still commit an offence under the Act. Indeed, the very existence of the condition may mislead an operator into unwittingly committing an offence. The Committee therefore reports regulations 9(6) and 16(1)(a) as making an unexpected use of the power to impose conditions. The Committee considers the current situation to be unsatisfactory and encourages the Department to consider how the difficulty might be resolved.

22. Regulation 19 authorises the licensing authority to direct that, following the death or bankruptcy of an individual licensee or his becoming a mental patient, a person carrying on the operator's business in succession to him is to be treated as the operator for the purposes of the 1998 Act. Given that section 3(3) of the Act requires the licensing authority to be satisfied that an operator is a fit and proper person to be such and that any other prescribed requirements are met, the Committee asked the Department to identify the powers under which regulation 19 was made. In its memorandum, the Department states that where a licence is issued to an individual the goodwill of the business might tail off comparatively quickly in the circumstances in which regulation 19 applies if no provision were made allowing the business to be continued on a temporary basis without the need to obtain a licence. Such provision was thought to be sufficiently supplemental and incidental. Again the Committee sympathises with the Department's aim, but, in view of the protection which the primary legislation seeks to provide to the public through the requirements for obtaining an operator's licence, the Committee doubts whether section 32(2)(c) authorises the provision made by regulation 19 and reports that regulation as being of doubtful vires.

THE ROYAL ULSTER CONSTABULARY (UNSATISFACTORY PERFORMANCE) REGULATIONS 2000 (S.R. 2000/316)

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

24. These Regulations, which are made under sections 25 and 26 of the Police (Northern Ireland) Act 1998, make provision with respect to the assessment of performance of members of the Royal Ulster Constabulary and Royal Ulster Constabulary Reserve and establish procedures for cases in which a member who is not performing satisfactorily may be required to resign, reduced in rank or given a warning that he may be required to resign if his performance does not improve

25. Sections 25(8) and 26(6) of the 1998 Act require the Secretary of State to consult both the Police Authority and the Police Association before making any regulations under section 25 or 26. The preamble to the Regulations does not recite that such consultation has taken place, but recites instead that the Secretary of State has consulted the Police Authority, the Police Association and the Police Ombudsman in accordance with section 64(4) of the Act. That provision applies only in the case of regulations made under section 64. The Committee therefore asked the Northern Ireland Office to explain the citation regarding consultation in the preamble. In its memorandum printed in Appendix 5, the Northern Ireland Office acknowledges that the reference to section 64(4) is inappropriate, and states that it will remove it and replace it with a correct reference. The Committee accordingly reports the preamble for defective drafting, acknowledged by the Department, but would remind the Department that, as the preamble to an instrument has no legislative force, it is not appropriate to amend it.

26. Regulation 6 sets out the procedure to be followed at a first interview of a member whose performance is to be discussed. Paragraph (4) states that "the interviewing officer may only, if he considers it appropriate, recommend that the member concerned seek assistance in relation to any matter affecting his health or welfare". The Committee asked the Department to explain the purpose and effect of the word "only". In its first memorandum, the Department explains that "only", which was not included in the draft version, was added to indicate that the recommendation may be given by way of help and not as a directive. Whilst the Committee appreciates the underlying concern, it does not consider that the addition of the word "only" addresses it. A recommendation is obviously different from a requirement. The addition of "only" simply obscures the meaning. The only reasonable interpretation is that a recommendation may be made only if the interviewing officer considers it appropriate to make it, but that proposition is hardly worth stating nor is this the Department's intended meaning. The Committee accordingly reports regulation 6(4) for defective drafting.

27. Regulation 11(5) requires the member's countersigning officer, following a second interview to discuss the member's performance, to send a copy of the record of the interview, and of any comments of the member concerned, to the personnel officer and, if the interview was conducted by the countersigning officer or any other officer, the reporting officer. The italicised words appeared to the Committee to be superfluous, since under regulations 5(2) and 10(2) all such interviews must be conducted, if not by the countersigning officer, by another officer of the same or a higher rank. The Department, in its first memorandum, explains that the intention was to ensure that the member's reporting officer receives a copy of the record of the interview regardless of who conducts it, but acknowledges that the phraseology could have been better. The Committee considers that the desired effect would have been achieved if the italicised words had been omitted, and reports regulation 11(5) for defective drafting, acknowledged by the Department.

28. Regulation 18 confers certain functions on the chairman of a hearing to consider a member's unsatisfactory performance, and paragraph (6) provides that, in certain cases, references to the chairman in regulations 19 to 21 shall, in relation to an appeal made under regulation 19(2), be construed as including any member appointed to carry out the functions of the chairman. As regulations 19 to 21 (which provide for reviews of cases by the Chief Constable) do not contain any references to the chairman, and as regulation 19(2) sets out the time limits for requesting a review and does not provide for the making of an appeal, the Committee asked the Department to explain these references. In its first memorandum, the Department states that "references to the chairman in regulations 19 to 21" means that any reference to the chairman "in pursuance of" these regulations has the meaning given in regulation 18(6), and that the reference to an appeal made under regulation 19(2) ought to have been to a review by the Chief Constable. The Committee is unable to follow the first explanation. There being no references to the chairman in regulations 19 to 21, regulation 18(6) is self-evidently defectively drafted and the Committee accordingly reports regulation 18(6) for defective drafting. If the offending words were omitted the reference to an appeal under regulation 19(2) would no longer exist, so the amendment proposed by the Department would not be necessary.

29. Part V of the Regulations entitles a member to request a review by the Chief Constable of a sanction imposed under regulation 17. These sanctions are a requirement to resign either immediately or on a specified date, an immediate reduction in rank together with a written warning, or a written warning only. Regulation 21(2) permits the Chief Constable, on a review, to impose a different, but no greater, sanction than that originally imposed. It was not clear to the Committee what other sanctions may be imposed by the Chief Constable. In its first memorandum, the Department explains that the Chief Constable has power to impose any lesser sanction that could have been imposed under regulation 17, but no other. The Committee accordingly reports regulation 21(2) for requiring the elucidation provided by the Department's first memorandum.

30. If the decision on the review under Part V is that the member should be dismissed, required to resign or reduced in rank, he has the right to appeal to a Police Appeals Tribunal. Where the sanction imposed under regulation 17 is a written warning, regulation 18 (which is in Part IV of the Regulations) provides for a further review of the member's performance after the period specified in the warning. Following such a further review, the member may be required to resign if his performance has not improved sufficiently. In its first memorandum the Department confirmed that there is no right to request a review by the Chief Constable of a sanction imposed under this procedure. Sections 25(4) and 26(4) of the 1998 Act, however, require the regulations to provide for appeals to an appeals tribunal by members who are dismissed, required to resign or reduced in rank. In its second memorandum, the Department acknowledges that the Regulations should provide a right of appeal in such circumstances, and the Committee accordingly reports the Regulations for defective drafting in this respect, acknowledged by the Department.

THE ROYAL ULSTER CONSTABULARY (CONDUCT) REGULATIONS 2000 (S.R. 2000/315)

31. The Committee draws the attention of both Houses to these Regulations on the grounds that in several places they are defectively drafted and in one place are of doubtful vires.

32. These Regulations, which are made under sections 25 and 26 of the Police (Northern Ireland) Act 1998, make provision as to the procedures to be followed where there has been a report, allegation or complaint that the conduct of a member of the Royal Ulster Constabulary or of the Royal Ulster Constabulary Reserve has failed to meet the appropriate standard.

33. Sections 25(8) and 26(6) of the 1998 Act require the Secretary of State to consult both the Police Authority and the Police Association before making any regulations under section 25 or 26. The preamble to the Regulations does not recite that such consultation has taken place, but recites instead that the Secretary of State has consulted the Police Authority, the Police Association and the Police Ombudsman in accordance with section 64(4) of the Act. That provision applies only in the case of regulations made under section 64. The Committee therefore asked the Northern Ireland Office to explain the citation regarding consultation in the preamble. In its memorandum printed in Appendix 6, the Northern Ireland Office acknowledges that the reference to section 64(4) is inappropriate, and states that it will remove it and replace it with a correct reference. The Committee accordingly reports the preamble for defective drafting, acknowledged by the Department, but would remind the Department that, as the preamble to an instrument has no legislative force, it is not appropriate to amend it.

34. Regulation 8 provides for the appointment, by a senior member of the RUC or RUC Reserve (the "supervising member"), of an investigating officer to investigate a case of alleged unsatisfactory conduct. Paragraph (2) of regulation 8 specifies who may be an investigating officer and provides in sub-paragraph (d) that he or she may be an officer of the Ombudsman. However, although Schedule 3 to the 1998 Act contains detailed provisions permitting arrangements whereby members of the police force may be seconded to service with the Ombudsman, there is nothing in the Act to suggest that an officer of the Ombudsman may be appointed by a police officer to carry out any functions. The Committee asked the Department to explain under what power paragraph (2)(d) provides for an officer of the Ombudsman to be appointed as the investigating officer and what authorises such an officer to act in that capacity. The Department, in its memorandum, states that the Ombudsman's powers to appoint an investigating officer to investigate complaints against members of the police are conferred by section 56(1) of the 1998 Act. It appears to the Committee, however, that section 56 is irrelevant in the present context. Regulation 8 is concerned solely with the appointment of an investigating officer by a police officer, not with appointments by the Ombudsman. The Committee considers that there must be doubt as to whether there is power under the Act to provide for a police officer to appoint an officer of the Ombudsman as an investigating officer and accordingly reports regulation 8(2) on that ground.

35. Paragraph (3) of regulation 8 provides that the provisions of that regulation are without prejudice to the powers of the Ombudsman to approve the police officer appointed by the Chief Constable to investigate a complaint referred to him under section 57(3) or to appoint an investigating officer of the Ombudsman to investigate a complaint under section 56(1) of the 1998 Act. The Committee asked the Department to explain the need for paragraph (3), given that, firstly, it purports to preserve the effect of primary legislation and, secondly, section 56 applies to investigations by the Ombudsman but regulation 8 does not. The Department, in its memorandum, acknowledges that regulation 8(3) is unnecessary and ought not therefore to have been included. The Committee accordingly reports regulation 8(3) for defective drafting, acknowledged by the Department.

36. Regulation 10(1) requires the investigating officer, at the end of his investigation, to submit a report to the supervising member or to the Ombudsman, and regulations 11 and 12 (in the latter case as modified by paragraph 2 of Schedule 3) make further reference to the Ombudsman. There is nothing in the Regulations to indicate how it is to be determined which alternative is to apply, nor is it clear from the Regulations why the Ombudsman should receive a report under regulation 10(1). The Committee asked the Department to explain these references to the Ombudsman, and in its memorandum the Department explains that the 1998 Act requires any complaint about the conduct of a police officer to be referred to the Ombudsman who will decide how it should be dealt with. Part VII of the 1998 Act does indeed make such provision, but that does not assist in explaining why and when reports on investigations under these Regulations should be submitted to the Ombudsman rather than to the supervising officer. The Regulations ought to have explained this, but do not, and the Committee accordingly reports regulation 10(1), 11(3) and 12 (as modified by paragraph 2 of Schedule 3) for defective drafting.

37. Regulation 11(2)(a) requires the supervising member, on receipt of the investigating officer's report, to refer the case to a hearing "where the chief constable has a duty to proceed under section 59(5) or (6)" of the 1998 Act, and regulation 12(1)(b) prohibits the supervising member from withdrawing a case in such circumstances. Section 59(5) permits the Ombudsman, in specified circumstances, to direct the Chief Constable to bring disciplinary proceedings, but it is section 59(6) which requires the Chief Constable to comply with the direction. The Committee asked the Department to explain the reference to section 59(5). In its memorandum the Department acknowledges that the reference is unnecessary. The Committee considers that it is not merely unnecessary but incorrect. Where a direction is given under section 59(5) a duty arises under section 59(6), but a duty cannot arise under the former and not under the latter, as implied by the language of the Regulations. The Committee accordingly reports regulations 11(2)(a) and 12(1)(b) for defective drafting, acknowledged by the Department.

38. Regulations 31(1) and 35(2) refer respectively to "a directed case" and "a directed hearing". As these expressions are not defined and their meaning is unclear, the Committee asked the Department to explain them. The Department, in its memorandum, does not explain the meaning of the expressions but indicates that they are intended to refer to the same thing and that it proposes to align the wording of regulation 31(1) with that of regulation 35(2) and define the expression. The Committee accordingly reports regulations 31(1) and 35(2) for defective drafting, acknowledged by the Department.

39. Paragraph 4 of Schedule 3 modifies regulation 17 in certain cases. The first modification substitutes, in paragraph (1), for the words from "on which he is notified" to the end certain other words. The second modification omits paragraph (1)(c). As paragraph (1)(c) appears after the quoted words in paragraph (1), it is already omitted by the first modification, so that the second is otiose and ought not to have been included. The Committee asked the Department to explain the second modification. The Department's memorandum acknowledges that the reference to paragraph (1)(c) is nugatory, but for reasons concerned with the substance of the modifications, and fails to address the Committee's point. The Committee accordingly paragraph 4 of Schedule 3 for defective drafting.

40. Paragraph 21(b) of Schedule 3 modifies regulation 34(2) by omitting "the words appearing after regulation 33". As the whole of regulation 34(2) appears after regulation 33, the Committee asked the Department whether "regulation 33" should have been in inverted commas. In its memorandum, the Department acknowledges that the words ought to have been in inverted commas, and the Committee accordingly reports paragraph 34(b) for defective drafting, acknowledged by the Department.

THE ROYAL ULSTER CONSTABULARY (APPEALS) REGULATIONS 2000 (S.R. 2000/317)

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

42. These Regulations, which are made under sections 25 and 26 of the Police (Northern Ireland) Act 1998, make provision with respect to the procedure on appeals to a police appeals tribunal by RUC officers whose conduct or performance has been found to be unsatisfactory.

43. Sections 25(8) and 26(6) of the 1998 Act require the Secretary of State to consult both the Police Authority and the Police Association before making any regulations under section 25 or 26. The preamble to the Regulations does not recite that such consultation has taken place, but recites instead that the Secretary of State has consulted the Police Authority, the Police Association and the Police Ombudsman in accordance with section 64(4) of the Act. That provision applies only in the case of regulations made under section 64. The Committee therefore asked the Northern Ireland Office to explain the citation regarding consultation in the preamble. In its memorandum printed in Appendix 7, the Northern Ireland Office acknowledges that the reference to section 64(4) is inappropriate, and states that it will remove it and replace it with a correct reference. The Committee accordingly reports the preamble for defective drafting, acknowledged by the Department, but would remind the Department that, as the preamble to an instrument has no legislative force, it is not appropriate to amend it.

44. Regulation 6(4) requires copies of any documents submitted by the appellant on an appeal to be sent by the Police Authority to the respondent and the members of the tribunal. Regulation 6(7) requires copies of any documents submitted by the respondent (including supporting documents) to be sent to the members of the tribunal. Regulation 6(6) requires copies of certain documents submitted by the respondent to be supplied to the appellant, but entitles him to receive only a list of the respondent's supporting documents and not a copy of the supporting documents themselves. The Committee asked the Department to explain the reason for this differential treatment. In its memorandum the Department states that the appellant may already possess or have copies of these documents, but accepts that the appellant should be in the same position as the respondent and that an appropriate amendment will be made. The Committee accordingly reports regulation 6 for defective drafting, acknowledged by the Department.

45. Regulation 8(3)(d) requires one of the members of the tribunal, in the case of an appeal by a police officer who is not a senior officer, to be a retired officer "of appropriate rank". The Committee asked the Department to explain the meaning of this expression. In its memorandum, the Department states that it did not consider it appropriate to define "appropriate rank" in the Regulations as the meaning will vary according to the rank of the appellant. In fact, the appropriate rank will be superintendent or chief superintendent where the appellant is a superintendent and a chief inspector or below in all other cases. This is elaborated in the Guidance to the Regulations. The Committee considers that it is not adequate to impose a legal requirement as to the rank of a tribunal member without making the rank clear. The elaboration provided in the Guidance ought to have been provided in the Regulations themselves, and the Committee accordingly reports regulation 8(3)(d) for defective drafting.

THE ROYAL ULSTER CONSTABULARY (COMPLAINTS) (INFORMAL RESOLUTION) REGULATIONS 2000 (S.R. 2000/319)

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

47. These Regulations provide for the informal resolution of complaints against RUC officers under section 53(4) of the Police (Northern Ireland) Act 1998.

48. Regulation 4(1) provides that the appropriate authority, following referral to it by the Ombudsman of a complaint suitable for informal resolution, shall appoint a member for the purpose of resolving the complaint. This implies that the appropriate authority must appoint a member for each complaint, and may appoint different members for different complaints. On the other hand, regulation 2 defines "the appointed member" as the member appointed for the informal resolution of complaints under section 53(4) of the Act of 1998. This implies that the appropriate authority must have appointed a single member to deal with all such complaints. The two provisions are to that extent incompatible. Furthermore, section 53(4) of the Act provides that where a complaint is referred [by the Ombudsman], the appropriate authority must seek to resolve it informally and may appoint a member of the police force to do so on behalf of the authority. The Regulations, by purporting to make the appointment of a member for this purpose mandatory, are thus in conflict with the clear words of the enabling Act.

49. The Committee asked the Northern Ireland Office to explain the apparent conflict between regulations 2 and 4(1) and how either of them is compatible with section 53(4) of the Act. The Department, in its memorandum printed in Appendix 9, simply states that the Regulations will be amended in a way which will remove the features referred to in the Committee's questions. The Committee accordingly reports the Regulations for defective drafting, implicitly acknowledged by the Department.

THE ROYAL ULSTER CONSTABULARY (CONDUCT) (SENIOR OFFICERS) REGULATIONS 2000 (S.R. 2000/320)

50. The Committee draws the attention of both Houses to these Regulations on the ground that they are defectively drafted in several places.

51. These Regulations, which are made under sections 25 and 26 of the Police (Northern Ireland) Act 1998, make provision as to the procedures to be followed where a senior RUC officer's conduct is suspected of failing to meet the appropriate standard.

52. Sections 25(8) and 26(6) of the 1998 Act require the Secretary of State to consult both the Police Authority and the Police Association before making any regulations under section 25 or 26. The preamble to the Regulations does not recite that such consultation has taken place, but recites instead that the Secretary of State has consulted the Police Authority, the Police Association and the Police Ombudsman in accordance with section 64(4) of the Act. That provision applies only in the case of regulations made under section 64. The Committee therefore asked the Northern Ireland Office to explain the citation regarding consultation in the preamble. In its memorandum printed in Appendix 10, the Northern Ireland Office acknowledges that the reference to section 64(4) is inappropriate, and states that it will remove it and replace it with a correct reference. The Committee accordingly reports the preamble for defective drafting, acknowledged by the Department, but would remind the Department that, as the preamble to an instrument has no legislative force, it is not appropriate to amend it.

53. Regulation 4 is headed "Interpretation and application". It contains a paragraph (1), which defines a number of expressions used in the Regulations, but no other paragraph. It appeared to the Committee that a second paragraph, dealing with the application of the Regulations, might have been omitted inadvertently, and the Committee asked the Department whether this was the case. In its memorandum, the Department explain that regulation 4 should have been headed "Interpretation" and that the paragraph number should have been omitted.

54. Regulation 4 defines "Code of Conduct", for the purpose of the Regulations, as meaning the code of conduct contained in Schedule 4 to the Royal Ulster Constabulary (Conduct) Regulations 2000; except that in relation to conduct occurring before 6th November 2000 it means the discipline code contained in Schedule 1 to the Royal Ulster Constabulary (Discipline and Disciplinary Appeals) Regulations 1988. Regulation 2(2), however, provides that where a report, complaint or allegation has been or is received in respect of conduct by a senior officer which occurred or commenced before 6th November 2000 the 1988 Regulations shall continue to have effect, and regulation 2(3) provides for these Regulations to apply in relation to conduct of a senior officer which occurred or commenced on or after 6th November 2000. It follows from these provisions that any conduct which falls to be considered against the standards set out in the 1988 Code must be dealt with under the 1988 Regulations, and these Regulations will not apply. The Committee asked the Department to explain where in these Regulations "Code of Conduct" means the code contained in the 1988 Regulations. In its memorandum, the Department merely states that the expression has that meaning when applied to conduct occurring or commencing before 6th November 2000, by virtue of regulation 2(2). This, in the Committee's view, does not answer the question. Regulation 2(2) would indeed be the only provision of the Regulations where "Code of Conduct" could have that meaning, but that regulation does not contain those words. The second part of the definition is therefore otiose and should have been omitted. The Committee accordingly reports regulation 4 for defective drafting in two respects, one of which is acknowledged by the Department.

55. Regulation 7(3) provides for the appointment by the Police Authority of an investigating officer. Regulation 7(4) states that the investigating officer shall be (a) a member, or (b) if the chief officer of a police force in the United Kingdom is requested and agrees to provide an investigating officer, a member of that force, and of at least the rank of the senior officer concerned, or (c) an officer of the Ombudsman. The Committee asked the Department whether the underlined words in sub-paragraph (b) are also intended to qualify sub-paragraph (a). In its memorandum, the Department confirms that they are. As drafted, the Regulations do not achieve this intention, and the Committee accordingly reports regulation 7(4) for defective drafting.

56. Paragraph (6) of regulation 7 provides that the provisions of that regulation are without prejudice to the powers of the Ombudsman with regard to the approval of investigations under section 57(3) or the appointment of an investigating officer of the Ombudsman under section 56(1) of the 1998 Act. The Committee asked the Department to explain the need for paragraph (6), given that, firstly, it purports to be without prejudice to primary legislation and, secondly, section 56 applies to investigations by the Ombudsman but the Regulations do not. The Department, in its memorandum, states that regulation 7(6) is incorrect since the Ombudsman does not have the power to delegate the investigation of complaints in the case of a senior officer. The Committee agrees that regulation 7(6) should have been omitted but for different reasons. Firstly, a provision of the Regulations cannot override a provision of primary legislation, so the first part is otiose. Secondly, section 56 of the Act applies where a complaint is to be formally investigated by the Ombudsman under that section, whereas regulation 7 applies where a complaint has been referred for investigation by the police. The powers of the Ombudsman under section 56(1) are therefore inapplicable where regulation 7 applies. The Committee accordingly reports regulation 7(6) for defective drafting.

57. Regulation 9(2) requires the investigating officer, where it appears to him that the case is one to which Schedule 2 applies (fast track procedure for serious cases), to inform the Police Authority or the Ombudsman as appropriate. In such a case, regulation 9(5) requires the Police Authority, where appropriate in consultation with the Ombudsman, to determine whether they are of the same opinion. Paragraph 3 of Schedule 2 applies certain regulations with modifications in such cases. Regulation 12, as so modified, permits the Police Authority at any time before the beginning of a hearing under the Regulations to direct that the case be returned to the investigating officer or Ombudsman as appropriate. There is nothing in the Regulations to indicate how it is to be determined which alternative is appropriate for the purposes of regulation 9(2) or regulation 12, as modified, or when it is appropriate to consult the Ombudsman under regulation 9(5). The Committee asked the Department to explain the references to the Ombudsman. In its memorandum, the Department describes how these provisions are intended to operate. However, the explanation, if accurate, means that regulation 9(2) should have referred to the Ombudsman only and not to the Police Authority and that the modified regulation 12 should have referred to the Ombudsman only and not to the investigating officer. This apparent confusion demonstrates clearly, in the Committee's view, that the Regulations ought to have specified the circumstances, if any, in which the Ombudsman is to have a function under these provisions. The Committee accordingly reports regulation 9(2) and (5) and regulation 12 as modified by paragraph 3 of Schedule 2 for defective drafting.

58. A case under the Regulations may be referred for hearing by a tribunal. Regulation 20(3) requires the tribunal, as soon as possible after the hearing, to submit a report to the Police Authority, with a copy to the Ombudsman in the case of a complaint, setting out (a) the tribunal's finding, and (b), if that finding was that the conduct of the senior officer failed to meet the appropriate standard, a recommendation as to any sanction which, "subject to regulation 21", in its opinion should be imposed. Regulation 21 requires the Police Authority, where it decides that the conduct failed to meet the appropriate standard, to decide also whether to impose a sanction. The Committee asked the Department to explain the purpose and effect of the words "subject to regulation 21" in regulation 20(3)(b). In its memorandum, the Department states that the purpose is to point out that a finding may not result in the recommendation of a sanction. The Committee considers that this purpose is properly achieved without those words. Regulation 20(3)(b) requires the tribunal's report to set out its recommendation "as to any sanction which in its opinion should be imposed". It is clear from these words that if, in the tribunal's opinion, no sanction should be imposed, it need not recommend one. The words in regulation 20(3)(b) are therefore otiose and the Committee accordingly reports that provision for defective drafting.

59. Regulation 25(2) provides that, in the application of the Regulations to a case to which regulation 25 applies, regulations 11 and 22 shall have effect subject to the modifications specified in Part II of Schedule 2. The Committee asked the Department whether "regulations 11 and 22" should have read "regulations 11 to 22". The Department, in its memorandum, acknowledges that to be the case and the Committee accordingly reports regulation 25(2) for defective drafting, acknowledged by the Department.

GAS (THIRD PARTY ACCESS AND ACCOUNTS) REGULATIONS 2000 (S.I. 2000/1937)

60. The Committee draws the attention of both Houses to these Regulations on the ground that no compatability statement was provided with the Regulations

61. These Regulations, made under section 2(2) of the European Communities Act 1972, amend in considerable detail four Acts of Parliament (the Pipe-lines Act 1962, the Gas Acts 1986 and 1995, and the Petroleum Act 1998) to implement certain articles of Directive 98/30/EC concerning common rules for the internal market in natural gas. Paragraph 40 of the Home Office's guidance to government departments on the Human Rights Act 1998 ("the HRA") states that, as a matter of good practice, the Minister in charge of secondary legislation not subject to affirmative resolution which amends primary legislation should always make a written statement regarding its compatibility with Convention rights in an appropriate form, such as by letter to the Committee. No such statement was made in this case. The Committee asked the Department for Trade and Industry to explain why this was not done.

62. In its memorandum the Department states that it was previously unaware of the guidance, but it also questions the appropriateness of a compatibility statement in respect of Regulations implementing a Community Directive. The memorandum does not elaborate on the reasons for the Department's view, save to observe that Community law is, in practical terms, required to be compatible with the Convention, the intended implication presumably being that a compatibility statement would be otiose in such a case.

63. The Committee does not share the Department's doubts. Section 19 of the HRA requires the Minister in charge of a Bill to make a compatibility statement. To the extent that secondary legislation amends primary legislation it also constitutes primary legislation under the HRA. Although section 19 does not apply in such cases, the analogy with that section is close. Furthermore, the fact that under EC law directives are generally required to respect human rights does not mean that implementing regulations will necessarily do so in every respect. Member States have some discretion in the way directives are implemented and may add supplementary provisions, such as enforcement measures, the details of which are not covered by the directive and which may well raise HRA issues.

64. Even where implementing regulations reproduce a directive without more, that is not conclusive of the question whether a compliance statement is needed. There is no automatic guarantee that the scope of fundamental rights in EC law (which is informed by, but does not necessarily equate to, the European Convention on Human Rights) will match in every respect the scope of the Convention rights under the HRA, as interpreted by UK courts. Furthermore, section 19 itself does not exclude such cases where the EC obligation is implemented by primary legislation, and the making of a statement provides reassurance that the question has been considered.

65. In its memorandum the Department also observes that any provision in regulations made under section 2(2) of the 1972 Act which is incompatible with Convention rights would go beyond the powers conferred by that section. Assuming that to be correct (on the basis that section 3 of the HRA requires all statutory powers to be read, as far as possible, in a way which is compatible with Convention rights), the point applies to many statutory powers to make subordinate legislation and does not seem to carry the Department's argument in relation to regulations under section 2(2) any further.

66. The Committee accordingly notes that paragraph 40 of the Home Office's guidance applies to instruments not subject to affirmative resolution which implement EC obligations by amending primary legislation (other than incidentally) and reports these Regulations for failure to provide a compatibility statement as envisaged by that guidance.


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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