Joint Committee on Statutory Instruments Seventh Report



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 HM Treasury in connection with the Social Security (Contributions) (Amendment) Regulations 2001 (S.I. 2001/45) and the Social Security (Contributions) (Amendment) (Northern Ireland) Regulations 2001 (S.I. 2001/46) is printed in Appendix 1.

Fishing Vessels (Code of Practice for the Safety of Small Fishing Vessels) Regulations 2001 (S.I. 2001/9)

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

4. These Regulations, which are made under sections 85 and 86 of the Merchant Shipping Act 1995, require fishing vessels of less than 12 metres in length to comply with the Code of Practice for the Safety of Small Fishing Vessels, published by the Maritime and Coastguard Agency. Regulation 6 prohibits a vessel from proceeding on any voyage unless the vessel complies with the requirements of the Code of Practice. Regulation 7 requires the Secretary of State to permit alternative provision to that specified in the Code to be made, if he is satisfied that the alternative is at least as effective as the provision required by the Code. Regulation 8 makes the owner and the skipper guilty of an offence if a vessel proceeds, or attempts to proceed, on a voyage in contravention of regulation 6, but neither regulation makes any mention of the alternative provision which may be required to be allowed under regulation 7.

5. As regulation 8 creates an offence, it appeared to the Committee that the Regulations ought to have made it clear that (as the Committee assumed was intended) no offence is committed where a vessel does not comply with the Code but instead conforms to alternative provision authorised by the Secretary of State under regulation 7, and it asked the Department of the Environment, Transport and the Regions why the Regulations did not do so. In its memorandum, printed in Appendix 2, the Department argues that regulation 7 is not free standing but qualifies regulation 6, so that where alternative provision under regulation 7 is made there will be no infringement of regulation 6. The Department therefore sees no need for regulation 8 to refer to regulation 7.

6. The Committee accepts that, as regulation 8 creates an offence, a court would construe regulations 6 and 7 in the way the Department argues. But in the Committee's view provisions creating offences should, as far as possible, avoid reliance on implication. The intended effect of regulation 6 could very easily have been expressed and, in the Committee's view, it should have been. The Committee therefore reports regulation 6 for defective drafting.

Authorisation of Works (Listed Buildings) (England) Order 2001 (S.I. 2001/24)

7. The Committee draws the special attention of both Houses to this Order on the ground that its preamble does not conform to proper statutory instrument practice.

8. This Order applies to works for the demolition of a listed building executed or to be executed on or after 19 February 2001. It amends section 8(2) of the Planning (Listed Buildings and Conservation Areas) Act 1990, which sets out the requirements for authorisation of works for such demolitions, by substituting English Heritage for the Royal Commission on the Historical Monuments of England.

9. The Preamble to this Order cites as enabling powers sections 8 and 93 of the 1990 Act. However it is not clear which provisions of the Order are made under which powers conferred by section 93. The Department, in its memorandum printed in Appendix 3, states that section 93 is cited on account of the fact that section 93(4) gives authority for the Order to be made by statutory instrument. The Department concedes that paragraph 2.23A of Statutory Instrument Practice specifies that such a provision does not have to be cited in a preamble. The Committee accordingly reports the preamble to the Order for failure to comply with statutory instrument practice.

Northern Ireland Policing Board (Prescribed Period) Regulations 2000 (S.I. 200/386)

10. The Committee draws the special attention of both Houses to these regulations on the grounds that they are defectively drafted and in one provision are of doubtful vires.

11. Paragraph 7 of Schedule 1 to the Police (Northern Ireland) Act 2000 lays down the procedure for the nomination of political members of the Northern Ireland Policing Board. Paragraph 7(1) requires this procedure to be completed within the period prescribed by regulations made under that paragraph. Under the procedure the nominating officers of the political parties with the greatest number of seats in the Northern Ireland Assembly may nominate members, who may take up office by informing the Secretary of State that they are doing so. Under paragraph 7(5), if a nominating officer does not make a nomination, or the nomination is not taken up, within the prescribed period, the right to nominate passes to the nominating officer of the party with the next highest number of Assembly members.

12. These Regulations prescribe the period of seven days for the purposes of paragraph 7, and (in regulation 2(2)) such shorter period, being not less than two days, as the Secretary of State and the nominating officer agree, for the purposes of paragraph 7(5). Whilst the Committee appreciated that the period prescribed for the purposes of paragraph 7(5) needed to be shorter than the period within which the entire procedure must be completed, it found no authority in the Act for delegating the prescribing of the period under paragraph 7(5) to the Secretary of State and the nominating officer. The Committee was also concerned that under this provision a nominated person, or any other third party, would not necessarily know what period had been agreed between the Secretary of State and the nominating officer. It therefore asked the Northern Ireland Office to identify the power under which regulation 2(2) was made and to explain how a nominated person or other third party could be certain of knowing what period was prescribed for the purposes of paragraph 7(5).

13. In its second memorandum, which is printed in Appendix 4, the Department, without directly addressing the Committee's question, explains that, having considered the question, it decided to revoke and replace these Regulations, which it has done. The Committee assumes from this that the Department accepts that regulation 2(2) is of doubtful vires and it accordingly reports that provision on those grounds.

14. Where a nominated member of the Board ceases to hold office, paragraph 7(10) provides for the nominating procedure to be applied again. If a nominating officer does not make a nomination, or the nomination is not taken up, within the prescribed period (which, under the Regulations, is the same as the period prescribed for the purposes of paragraph 7(5)), paragraph 7(11) provides for the procedure to be repeated within such further period as is prescribed. As the Regulations do not prescribe any such further period, the Committee asked the Department to explain what further period is prescribed. The Committee again assumes, from the Department's second memorandum, that the Department accepts that the Regulations are defective in this respect and accordingly reports them for defective drafting, effectively acknowledged by the Department.

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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