Joint Committee on Statutory Instruments Fourteenth Report


FOURTEENTH 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.

National Health Service (Optical Charges and Payments) and (General
Ophthalmic Services) Amendment Regulations 2001 (S.I. 2001/414)

2. The Committee draws the special attention of both Houses to these Regulations on the ground that they do not comply with proper legislative practice.

3. The principal Regulations of 1986 and 1997, which this instrument amends, extend to England and Wales. However, although this amending instrument (following devolution) is intended to extend only to England, it contains no provision in the body of the instrument to this effect. The Department of Health, in a memorandum printed in Appendix 1, states that the heading of the instrument extends only to England. It accepts, however, that a provision stating that the Regulations only extend to England should have been included in the body of the instrument. The Committee accordingly reports the instrument for failure to comply with proper legislative practice, acknowledged by the Department.

Education (Publication of Draft Proposals and Orders) (Further
Education Corporations) (England) Regulations 2001 (S.I. 2001/782)

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

5. Regulations 4(2)(c) and 6(1)(iii) require a summary of a draft proposal or order relating to an existing institution to be published by being posted at or near the main entrance of that institution. The Committee asked the Department for Education and Employment to explain whether it was intended, in a case where the institution had more than one main entrance, that the summary should be posted at or near all of them; and, if so, why (unlike regulation 4(2)(c) of S.I. 2001/798) no express provision to that effect was made in this instrument. In a memorandum printed in Appendix 2, the Department indicates no difference of policy in this respect was intended between the two instruments, and that the practice, in a case where an institution has more than one main entrance, has been to publish a notice at each main entrance. The Department thanks the Committee for drawing the point to their attention, and will consider it when the Regulations are next amended. In the Committee's view the omission of an express provision relating to the publication of the notice in a case where an institution has more than one main entrance constitutes defective drafting, and it reports accordingly.

Court of Protection Rules 2001 (S.I. 2001/824)

6. The Committee draws the special attention of both Houses to these Rules on the ground that they make an unexpectedly limited use of the enabling power.

7. Under rule 54(4) any person aggrieved by an order or decision of the Court of Protection made on considering an application for review may apply to the court for an attended hearing. However, unlike two other provisions (rules 54(1) and 55(1)), no time limit is specified within which an application must be made. The Committee asked the Lord Chancellor's Department to explain within what period of time an application for an attended hearing under rule 54(4) must be made and why this was not specified. In its memorandum printed in Appendix 3, the Department explains that, in the absence of any specific time limit, the application must be made within a reasonable time, and that a period of 14 days "would appear reasonable", given that this time limit is specified in relation to rules 54(1) and 55(1). It undertakes to consider whether a specific time limit should be introduced in relation to applications under rule 54(4) when the Rules are next amended. In the Committee's view, in the interests of certainty, and consistently with the approach in rules 54(1) and 55(1), a time limit should have been specified in relation to an application for an attended hearing under rule 54(4). The Committee reports rule 54(4) on the ground that it makes an unexpectedly limited use of the enabling power.

Local Probation Boards (Miscellaneous Provisions) Regulations 2001 (S.I. 2001/786)

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

9. Regulation 7(3) provides that an audit committee established by a local probation board must have a maximum of 6 members, of whom at least 4 must also be members of the local probation board. In response to the Committee's question as to the intended effect of this provision, the Home Office replies, in a memorandum printed in Appendix 4, that it is intended that the maximum number of members of an audit committee should be 6, and the minimum number should be 4; and that there should always be at least 4 members of the local probation board on that committee. In the Committee's view, this intention has not been satisfactorily implemented. Regulation 7(3) does not specify the minimum number of members to be appointed to the committee. Nor does it specify, in a case where less than the maximum number is appointed, how many of them must also be members of the local probation board. The provision only specifies that the maximum number of members on the committee should be 6, and indicates that where 6 members are appointed at least 4 of them should be members of the local probation board. Accordingly, the Committee reports regulation 7(3) on the ground that it is defectively drafted.

Pollution Prevention and Control (England and Wales) (Amendment)
Regulations 2001 (S.I. 2001/503)

10. The Committee draws the special attention of both Houses to these Regulations on the ground that their Explanatory Note is incomplete.

11. Paragraph 2.74 of Statutory Instrument Practice states that "the note to an amending instrument should make clear the point and substance of the amendment". The Explanatory Note to these Regulations is insufficiently informative in that it does not indicate the point and substance of the amendments made to the principal Regulations. In a memorandum printed in Appendix 5, the Department of the Environment, Transport and the Regions gives a full explanation of the effect of the amendments, and indicate that they will in future have regard to the guidance offered in Statutory Instrument Practice. The Committee reports the Regulations on the ground that their Explanatory Note is insufficiently informative and therefore incomplete.



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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