Joint Committee on Statutory Instruments Eighth Report


EIGHTH 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 Privy Council Office in connection with the Veterinary Surgeons and Veterinary Practitioners (Registration) (Amendment) Regulations Order of Council 2000 (S.I. 2000/3282) is printed in Appendix 1.

3. A memorandum from the Department of Health in connection with the Wyre Forest Primary Care Trust (Establishment) Order 2001 (S.I. 2001/66) is printed in Appendix 2

4. A memorandum from the Department of the Environment, Transport and the Regions in connection with the Graduated Vehicle Excise Duty (Prescribed Types of Fuel) Regulations 2000 (S.I. 2000/93) is printed in Appendix 3.

General Chiropractic Council (Professional Conduct Committee) Rules
Order of Council 2000 (S.I. 2000/3290)
General Chiropractic Council (Health Committee) Rules
Order of Council 2000 (S.I. 2000/3291)

5. The Committee draws the attention of both Houses to these Orders on the grounds that their form is not in accordance with proper drafting practice and they are defectively drafted.

6. These Orders, made under the Chiropractors Act 1994, approve Rules made by the General Chiropractic Council laying down the procedure to be followed by, respectively, the Professional Conduct Committee and the Health Committee in considering allegations as to a chiropractor's conduct, competence or medical fitness to practice. Rule 16(2) in the Schedule to each instrument includes several propositions in a single sentence of 11 lines. It is therefore difficult to follow and to understand. In a memorandum submitted by the Privy Council (printed in Appendix 4) the General Chiropractic Council acknowledges that the rule, given its complexity, should have been subdivided to assist the reader. The Committee reports rule 16(2) in each instrument on the ground that its form is not in accordance with proper drafting practice.

7. The purpose of rule 16(2) is to ensure that a chiropractor is given an opportunity to make his views on any particular evidence known to the Professional Conduct Committee (or, the Health Committee) before it decides to take certain steps. The second part of that rule requires the Committee to give the chiropractor (if he has not indicated within the 28 day period mentioned in rule 15(2)(b) that he wishes to appear before the Committee and he does not appear before the Committee) an opportunity to make written representations before the expiry of that period. The General Chiropractic Council indicate that the intended effect is that, if the chiropractor does not indicate that he wishes to appear and does not appear, the Committee must check that the chiropractor has been given an opportunity to make written representations to the Committee within the 28 day period. In our view, however, the provision does not unambiguously achieve the desired effect. As drafted, the rule misleadingly suggests that the chiropractor is to be given an opportunity to make representations after (rather than before) the expiry of that period. The Council, while submitting that this is not the proper construction of the provision, accept that it could have been more clearly expressed and undertake to amend the provision at a suitable opportunity. The Joint Committee reports rule 16(2) in each instrument on the ground that it is defectively drafted.

Merchant Shipping (Mandatory Surveys for Ro-Ro Ferry and High Speed
Passenger Craft) Regulations 2001 (S.I. 2001/152)

8. The Committee draws the special attention of both Houses to these Regulations on the grounds that they fail properly to implement certain Community obligations and are defectively drafted.

9. These Regulations are made to implement Council Directive 1999/35/EC on a system of mandatory surveys for the safe operation of regular ro-ro ferry and high-speed passenger craft services. Articles 4 and 6 of the Directive require, respectively, initial verifications and initial surveys of vessels not already in operation on 1 December 2000—the date by which the Directive is required to be implemented—to be carried out before the vessels start operation. Regulations 4 and 6 respectively seek to implement articles 4 and 6 but are expressed to apply to vessels which start operation as a regular service "after 16 February 2001". Given that these regulations themselves are to come into force on 16 February, the Committee asked why they do not apply to vessels starting operation on or after 16 February. The Department, in its memorandum printed in Appendix 5, explains that although this discrepancy will have little, if any, practical effect it does indicate a failure to implement the obligations in articles 4 and 6 of the Directive at the earliest opportunity.

10. Article 5 of the Directive requires the verifications of operating companies and non-EEA flag States mentioned in regulation 5(1) and (2) of these Regulations to be carried out either prior to a company's vessel starting operations or by 1 December 2001 where a company's vessel is in operation on 1 December 2000. These timing requirements have however not been transcribed in the Regulations. The Committee asked the Department to account for this apparent failure. The Department, in its memorandum, acknowledges that this timing has not been transcribed in the Regulations and says that the Maritime and Coastguard Agency will comply with the timing and have clarified the matter in a Marine Guidance Notice. On this point, and on the matter dealt with in the paragraph above, the Committee reports the Regulations for failure properly to implement the relevant Council Directive in two particular regards.

11. Regulation 8 deals with regular specific surveys and additional surveys. Paragraph (2) of that regulation states that the Maritime and Coastguard Agency must carry out, subject to paragraphs (3) and (4), the requisite survey in relation to any vessel which "(b) subject to paragraph (3), changes management, changes flag, or transfers class". As paragraph (3) makes no reference to these changes, but paragraph (4) does, the Committee asked whether the reference to paragraph (3) is intended rather to be a reference to paragraph (4). It also asked why, given that paragraph (2) is already expressed to be subject to paragraphs (3) and (4), the further words of subjection are needed. The Department in its memorandum concedes that the reference to paragraph (3) is superfluous. The Committee therefore reports the regulation for defective drafting, acknowledged by the Department.


1  
The Orders of Reference of the Committee are set out in the First Report, Session 1999-2000 (HL Paper 4; HC 47-i). Back


 
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