Joint Committee on Statutory Instruments Fifth Report


FIFTH 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 the Environment, Transport and the Regions in connection with the Goods Vehicle (Authorisation of International Journeys) (Fees) Regulations 2000 (S.I. 2000/3207) is printed in Appendix 1.

3. A memorandum from the Lord Chancellor's Department in connection with the Rules of the Supreme Court (Northern Ireland) (Amendment No. 3) 2000 (S.I. 2000/393) is printed in Appendix 2.

THE GREATER LONDON AUTHORITY ACT (COMMENCEMENT NO. 8 AND CONSEQUENTIAL PROVISIONS) ORDER 2000 (S.I. 2000/3145)

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

5. Article 2 of this Order brings into force on 22 January 2001 paragraphs 1 to 18 of Schedule 21 to the Greater London Authority Act 1999 and section 254 of that Act, so far as it relates to those paragraphs. Subsections (1) and (2) of section 254 transfer certain functions of the Secretary of State under the Private Hire Vehicles (London) Act 1998 to Transport for London. Subsection (3) gives effect to Schedule 21, which, as the subsection states, makes amendments to the 1998 Act in consequence of subsections (1) and (2).

6. The Committee did not understand why the Order commenced provisions which are consequential on the transfer of functions made by section 254(1) and (2) of the 1999 Act, but appeared not to commence the provision effecting the transfer itself and asked the Department of the Environment, Transport and the Regions to explain. In its second memorandum, printed in Appendix 3, the Department explains that, in its view, the effect of article 2 is to bring into force the whole of section 254, except in so far as it gives effect to paragraph 19 of Schedule 21. The Department acknowledges, however, that the intention would have been better expressed if article 2 had brought section 254 into force "except in so far as it applies to paragraph 19 of Schedule 21". The Committee agrees that this would have made the position clear and considers that, as drafted, the article does not clearly achieve the intended effect. It therefore reports article 2 of the Order for defective drafting and recommends that the Department ensures that the provisions of section 254 (other than as regards paragraph 19 of Schedule 21) are unequivocally commenced in a future Order.

WATER SUPPLY (WATER QUALITY) REGULATIONS 2000 (S.I. 2000/3184)

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

8. The Regulations supplement Chapter III of the Water Industry Act 1991 and amend (for a limited period), and, from 1 January 2004, revoke and replace, the Water Supply (Water Quality) Regulations 1989. Their objective is to protect human health from the adverse effects of any contamination of water intended for human consumption by ensuring that it is wholesome and clean.

9. Regulation 1 deals with the citation, commencement and application of the Regulations. The Committee asked the Department why regulations 27 to 29 were brought into force on 1 January 2001 when regulation 25, which defines expressions used in those regulations, is not brought into force until 1 January 2004. The Committee also asked (in relation to regulation 33, which creates offences for non-compliance with regulations 28 and 29) why regulations 28, 29 and regulation 33—so far as it relates to regulation 29— came into force on 1 January 2001 when regulation 33 so far as it relates to regulation 28(9) does not come into force until 1 January 2004. Also, the Committee asked the Department why regulation 43(1) came into force on 1 January 2001 while regulation 43(4), which limits the extent of the revocations made by regulation 43(1), does not come into force until 1 January 2004. The Department, in its memorandum printed in Appendix 4, acknowledges that regulations 25 and 43(4) should have been brought into force on 1 January 2001 and that regulation 33 so far as it relates to regulation 28(9) should be commenced on 1 October 2001. It plans to bring forward amending regulations as soon as possible. The Committee therefore reports regulation 9 for defective drafting, acknowledged by the Department.

10. Regulation 35 deals with the provision of information and the inspection of records relating to water quality and related matters. Regulation 35(8) places a duty on a water undertaker to notify the appropriate local authority, appropriate health authority and relevant customer services committee of any event which is likely to give rise to a significant risk to the health of persons residing in the authority's area. "Appropriate local authority" and "appropriate health authority" are defined as the authority in whose area the event occurs. The Committee asked whether any consideration had been given by the Department to whether any such event as referred to in regulation 35(8) could give rise to a risk to the health of persons residing in the area of another such authority because, as the definitions of "appropriate local authority" and "appropriate health authority" currently stand, a water undertaker would not be under a duty to inform another such authority in that instance. The Department in its memorandum thanks the Committee for bringing this matter to its attention and states its intention to address, in amending Regulations, the possibility of such an event as is mentioned in regulation 35(8) which occurs in the area of one local authority or health authority being able to give rise to a significant risk to the health of persons residing in the area of another such authority.

THE ROAD VEHICLES (CONSTRUCTION AND USE) (AMENDMENT) (NO. 3) REGULATIONS 2000 (S.I. 2000/3197)

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

12. These Regulations, made under the Road Traffic Act 1988, make various further amendments to the Road Vehicles (Construction and Use) Regulations 1986. Regulation 5 inserts a new regulation 61A into the 1986 Regulations. New regulation 61A(3), which prohibits the use on roads of certain vehicles which do not comply with emission limits applicable to them, is expressed to be subject to paragraphs (4) to (7). Paragraph (4), which is expressed to be subject to paragraphs (5) to (7), provides that, where certain conditions are met, "nothing in this paragraph" prevents a vehicle from being driven to a place for the repair or replacement of a device for controlling emissions. Paragraphs (5) to (7) provide further, freestanding exemptions from paragraph (3).

13. Given that paragraphs (5) to (7) provide separate exemptions from that provided by paragraph (4), the Committee did not understand why paragraph (4) was expressed to be subject to those paragraphs and asked the Department of the Environment, Transport and the Regions to explain. As paragraph (4) creates an exemption from the prohibition imposed by paragraph (3), but does not itself impose any prohibition, it appeared to the Committee that the reference in paragraph (4) to "this paragraph" was probably intended to be a reference to paragraph (3), and the Committee therefore asked the Department whether this was the case.

14. In its memorandum, printed in Appendix 5, the Department states that paragraph (4) is expressed to be subject to paragraphs (5) to (7) because paragraph (4) qualifies the new regulation 61A(3), which itself is subject to paragraphs (4) to (7). But the Department adds that paragraph (4) need not have contained the words in question. The Committee considers that the Department's explanation is misconceived. Paragraph (3) is subject to paragraphs (4) to (7) because those paragraphs (between them) create three exemptions from the prohibition in paragraph (3). But none of the exemptions is subject to the application of any of the others, and the repetition in paragraph (4) of the opening words of paragraph (3), adjusted to refer to paragraphs (5) to (7), is not merely unnecessary but inappropriate.

15. The Department accepts that the reference in paragraph (4) to "this paragraph" should have been to paragraph (3). The Committee accordingly reports new regulation 61A(3) for defective drafting, acknowledged in part by the Department.

THE OCCUPATIONAL PENSION SCHEMES (REPUBLIC OF IRELAND SCHEMES EXEMPTION) REGULATIONS 2000 (S.I. 2000/3198)

16. The Committee draws the special attention of both Houses to these Regulations on the ground that they make an unexpected use of the powers conferred by their parent Act.

17. These Regulations exempt from the requirements of certain Regulations made under the Pension Schemes Act 1993 and the Pensions Act 1995 certain occupational pension schemes which are established in the Republic of Ireland and which have, or have had, at least one member in pensionable service in Great Britain. Regulation 11 amends the Register of Occupational and Personal Pension Schemes Regulations 1997 by inserting in regulation 1 a new paragraph (3A), the effect of which is to disapply all of the requirements of those Regulations in respect of a Republic of Ireland Scheme except regulation 1 (definitions) and regulation 7, paragraph (1) of which makes it an offence for the trustees of a registrable pension scheme to fail to comply with the 1997 Regulations, and paragraph (2) of which imposes a penalty on a person who uses for marketing purposes information supplied to him by the Registrar under the 1997 Regulations. The Committee did not understand the purpose of preserving these ancillary provisions in relation to Republic of Ireland schemes when the substantive provisions of the Regulations ceased to apply to them and asked the Department of Social Security to explain.

18. In its memorandum, which is printed in Appendix 6, the Department explains that it had realised at a late stage that an instrument which disapplied regulation 7(1) would have been subject to the affirmative resolution procedure, and that the application of that procedure would have made it impossible to meet a commitment to the Irish Government that the Regulations would be in force by the end of 2000.

19. The Department's concerns are based on section 168(2) and 186(3) of the Pension Schemes Act 1993. Section 168(2) authorises regulations made under that Act to provide for the contravention of them to be an offence under the Act. Section 186(3) subjects to the affirmative resolution procedure a statutory instrument which contains (whether alone or with other provisions) regulations made by virtue of section 168(2). In the Committee's view, however, disapplying the whole of the 1997 Regulations in relation to Republic of Ireland schemes would not have involved an exercise of the power conferred by section 168(2). Having ceased to require compliance with the duties imposed by the 1997 Regulations as regards Republic of Ireland schemes, it inevitably follows that the offence of non-compliance with those duties can no longer apply in respect of any of them. This purely consequential effect would not, in the Committee's view, involve the exercise of the power to provide for (or remove) offences. The intention to disapply the whole of the 1997 Regulations to the Republic of Ireland schemes could, in the Committee's view, have been achieved by simply providing that the 1997 Regulations do not apply to such schemes (as is done in respect of the Occupational and Personal Pension Schemes (Levy) Regulations 1997 by regulation 12 of this instrument).

20. The Department's memorandum does not deal with the subsidiary point that the amendment of regulation 7(2) of the 1997 Regulations in any event does not fall within section 168(2), so that its retention is not justified even on the Department's argument. The Committee accordingly reports regulation 11 for making an unexpected use of the powers conferred by the Act.

ROAD VEHICLES (AUTHORISED WEIGHT) (AMENDMENT) REGULATIONS 2000 (S.I. 2000/3224)

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

22. These Regulations, made under section 41 of the Road Traffic Act 1988 give effect to Government proposals relating to the introduction of 44 tonne motor vehicles and trailers into the United Kingdom on 1 February 2001. They amend the Road Vehicles (Authorised Weight) Regulations 1998 (S.I. 1998/3111) to permit the use of such vehicles from that date and, with effect from 1 January 2002, they provide safeguards against the misuse of current axle lift technology and the emission of pollutants.

23. Regulation 3(2) lists various expressions which are to be construed in accordance with provisions listed with them. The Committee asked whether these provisions are intended to be incorporated in the 1998 Regulations; and, if not, to explain their purpose. The Department, in its memorandum printed in Appendix 7, admit that the definitions in this regulation should have been incorporated directly into the 1998 Regulations. The Committee therefore reports regulation 3(2) for defective drafting.

24. Regulation 6(b) adds a new sub-paragraph (5) "at the end of" Schedule 2 of the 1998 Regulations. The Committee asked the Department whether this sub-paragraph was intended to be added at the end of paragraph 1. The Department confirm that the intention was that sub-paragraph (5) should be added at the end of paragraph 1 of Schedule 2. The Committee therefore reports regulation 6(b) for defective drafting, acknowledged by the Department.

25. Regulation 6 also amends Table 3 in Schedule 2 of the 1998 Regulations by adding two new items, 13 and 14. No amendment however is made to paragraphs 1(2) and 1(4) of the Schedule so that they refer to these new items. The Committee asked the Department why no such amendment was made in regulation 6. The Department acknowledge that such consequential amendments to paragraphs 1(2) and 1(4) should have been made and state its intention to amend this, and the other errors pointed out by the Committee, at the earliest available opportunity. The Committee accordingly reports regulation 6 for defective drafting, acknowledged by the Department.

LOCAL AUTHORITIES (EXECUTIVE ARRANGEMENTS) (ACCESS TO INFORMATION) (ENGLAND) REGULATIONS 2000 (S.I. 2000/3272)

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

27. These Regulations apply to county councils and district councils in England, and to London borough councils, which are operating executive arrangements under Part II of the Local Government Act 2000. They make provision relating to public access to meetings of local authority executives and their committees and deal with access to information and documentation relating thereto.

28. Regulation 1(1) which deals with the citation, commencement and application of the Regulations contains square brackets around the year "2000". The Committee asked the Department to explain the significance of the square brackets. The Department, in its memorandum printed in Appendix 8, explains that the square brackets around the year "2000" have no significance and should have been omitted. The Committee accordingly reports regulation 1(1) for defective drafting, acknowledged by the Department.

29. Regulation 7(1) requires certain unspecified meetings to be held in public. The Committee asked the Department whether the regulation was intended to apply to meetings of a "decision making body" as defined in regulation 2. The Department in its memorandum confirm that regulation 7(1) is intended only to apply to meetings of decision making bodies as so defined and admits that the text should have made this clearer. The Committee therefore reports regulation 7(1) for defective drafting, acknowledged by the Department.

30. Regulation 7(1) requires a meeting to be held in public where the person presiding reasonably believes that certain circumstances will occur at the meeting or part of the meeting. Regulation 7(1)(c)(ii) specifies the circumstance that "a decision is made" and is followed by words whose purport in the context of regulation 7(1) as a whole is unclear. The Committee asked the Department to explain the meaning and purpose of regulation 7(1)(c)(ii) and the words following it. The Department admits in its memorandum that the regulation is unclear. The words "a decision is made" which make up regulation 7(1)(c)(ii) should in fact read "a decision is to be made" and the words which follow should be so aligned as to apply only to 7(1)(c)(i) and (ii). The Committee accordingly reports regulation 7(1) for defective drafting, acknowledged by the Department.

31. Regulation 13 refers to forward plans which should provide information about meetings which are yet to take place and which under these regulations should—at least in part—be open to the public. It is however unclear when an authority's first forward plan is required to be prepared and what imposes any such requirement. The Committee therefore asked the Department to explain its understanding of this Regulation. The Department in its memorandum explains that its intent was that the first forward plan would be prepared and published when an authority begins to adopt executive arrangements. It admits however that for clarity's sake the regulation should have stated expressly when the first forward plan is required. The Committee accordingly reports regulation 13 for defective drafting, acknowledged by the Department.

32. Regulation 16, which deals with cases of special urgency, details the circumstances in which decisions can be made, and by whom, at meetings of which notice cannot be given in a forward plan due to the urgency of the matter involved. The Committee asked the Department to explain some apparently extraneous words following regulation 16(c) which make a clear reading of regulation 16 as a whole difficult. The Department in its memorandum admit that the words "his agreement" following 16(c) are superfluous. The Committee therefore reports regulation 16 for defective drafting, acknowledged by the Department.

33. Regulation 18(2) deals with the circumstances in which a member of an overview and scrutiny committee shall be entitled to a copy of documents or parts of documents containing confidential or exempt information. Regulation 19(2)(a)(ii) refers to documents or parts of documents containing advice provided by political advisers or assistants but makes no sense within its context as a qualification of regulation 18(2)(a). The Committee therefore asked the Department to explain the meaning of regulation 18(2)(a)(ii). The Department in its memorandum explains that the second limb of regulation 18(2)(a)(i) should have been regulation 18(2)(a)(ii) and that regulation 18(2)(a)(ii) (as currently drafted) should have been regulation 18(2)(b). The Committee therefore reports regulation 18(2) for defective drafting, acknowledged by the Department.

34. Regulation 22 deals with documents which are to be available for inspection at the offices of the local authority. Regulation 22(4) deals with privilege attaching to any defamatory matter in such documents supplied—amongst other cases—for the benefit of any newspaper, pursuant to regulation 11(7)—which requires copies of papers for a public meeting to be supplied on request to a newspaper. The Committee asked the Department whether regulation 22(4) should also apply where documents are supplied to newspapers pursuant to regulation 5(2)—which imposes a similar requirement in respect of records of, and reports considered at, meetings at which executive decisions are made. The Department admits that it would be logical for regulation 22(4)(b) also to apply to documents supplied pursuant to regulation 5(2). The Committee accordingly reports regulation 22(4)(b) for defective drafting, acknowledged by the Department.

35. Regulation 23(1)(b) makes it an offence for a person who has custody of a document, without reasonable excuse, to refuse to supply a copy of the whole or part of the document in accordance with regulation 22(2). However it does not appear to apply to a refusal to supply a copy of a document to a newspaper in accordance with regulation 5(2) or 11(7). The Committee asked the Department to explain this apparent omission. The Department in its memorandum states that the intention of regulation 23 was for it to mirror for executive arrangements the position provided for by section 100(H)(4) of the Local Government Act 1972 and accepts that it ought therefore to have included in regulation 23 a reference to regulations 5(2) and 11(7). The Committee reports regulation 23 for defective drafting, acknowledged by the Department. The Department states its intention to amend the regulations to rectify this—and the other errors identified by the Committee—as soon as possible by amending regulations.

CRIMINAL APPEAL (AMENDMENT) (NORTHERN IRELAND) RULES 2000 (S.R. 2000/387)

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

37. These Rules amend the Criminal Appeal (Northern Ireland) Rules 1968 to prescribe the practice and procedure applicable where issues under the Human Rights Act 1998 arise in criminal appeal proceedings in the Court of Appeal. Rule 2(a) inserts into rule 5(2) a new sub-paragraph (aa), paragraph (i) of which requires a notice of the grounds of appeal to include details of any Convention right which the appellant alleges has been infringed and details of the alleged infringement. New rule 5(2)(ab) limits the application of "sub-paragraph (a)(i) above" to cases where the appellant intends to rely on a Convention right not relied on before the court from whose decision the appeal is brought. The Committee assumed that the intention in sub-paragraph (ab) was to refer to sub-paragraph (aa)(i) and asked the Northern Ireland Court Service whether this was the case. The Department, in its memorandum printed in Appendix 9, confirms this to be the case, apologises for the error and undertakes to correct it at the earliest opportunity. The Committee accordingly reports rule 2(a) for defective drafting, which is acknowledged by the Department.

38. Rule 21(1) of the 1968 Rules requires the Registrar to serve notice of any final determination of the Court on the persons enumerated in sub-paragraphs (a) to (c). Rule 2(c) of these Rules adds a new sub-paragraph (d) to rule 21(1). The new sub-paragraph does not, however, simply identify the further persons to be served, but contains a new provision which does not fit grammatically into the existing paragraph. The Committee therefore asked the Department to explain the meaning of this provision. In its memorandum, the Department explain the intended purport of the new sub-paragraph and acknowledge that it would have been better to have made it a new paragraph (1A) in rule 21, so as to distinguish more clearly between the requirements for notices of declarations of incompatibility and those for notices of other final determinations. However, the Department appears not to have appreciated the inapt drafting of new sub-paragraph (d) in the context in which it is inserted into rule 21(1). It is for this reason that the Committee reports rule 2(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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