Joint Committee on Statutory Instruments Fifteenth Report


FIFTEENTH 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 by the Department of Health in connection with the Medicines for Human Use and Medical Devices (Fees and Miscellaneous Amendments) Regulations 2001 (S.I. 2001/795) is printed in Appendix 1.

3. A memorandum by Her Majesty's Treasury in connection with the Insurance (Fees) Regulations 2001 (S.I. 2001/812) is printed in Appendix 2.

Inner London Court Staff Pensions Order 2001 (S.I. 2001/733)

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

5. This Order makes provision for people employed as inner London court staff to continue to be able to be members of the Metropolitan Civil Staffs Superannuation Scheme after the transfer of their employment to the Greater London Magistrates' Courts Authority.

6. Article 2(1) of the Order provides for the continuation of scheme membership for persons who "immediately before the making of this Order are regarded as members of the metropolitan civil staffs". However the Explanatory Note to the Order states that the Order is intended to deal with persons who immediately before 1 April 2001—the Order's commencement date, not the date of its making—are regarded as members of the metropolitan civil staffs. The Committee asked the Department to explain this discrepancy.

7. The Department, in its memorandum printed in Appendix 3, apologises for this error. It accepts that the reference to the making of the Order in article 2(1) should indeed be a reference to its commencement. The Department states its intention to produce an amending Order immediately, which it has done (see the Inner London Court Staff Pensions (Amendment) Order 2001, S.I. 2001/1485). The Committee accordingly reports the Order for defective drafting, acknowledged by the Department.

The National Health Service (Charges for Drugs and Appliances) Amendment
Regulations 2001 (S.I. 2001/746)

8. The Committee draws the special attention of both Houses to these Regulations on the grounds that they, and their Explanatory Note, are defectively drafted.

9. These Regulations amend the National Health Service (Charges for Drugs and Appliances) Regulations 2000, which provide for the making and recovery of charges for drugs and appliances supplied under the National Health Service Act 1977 (i.e. prescription charges).

10. Regulation 9 of the principal Regulations provides for a person to receive, on application and payment of the prescribed sum, a pre-payment certificate conferring exemption from prescription charges during the period (of either 4 or 12 months) for which the certificate is valid. Regulation 9(6) provides for a refund of the sum paid to be claimed if, within the first month of the period of validity of the certificate, he (a) would otherwise have become exempt from liability to pay charges, (b) becomes entitled to remission of charges, (c) dies, or (d) becomes resident in hospital (if he subsequently dies while so resident before the certificate expires). Regulation 7(3) of these Regulations substitutes new paragraphs for paragraphs (7) and (8) of regulation 9. The new regulation 9(7) provides that, where the person dies or becomes resident in hospital and thereafter dies during the relevant period as defined in paragraph (9), an application for a refund may be made in respect of each complete month following the date on which the person died or became resident in hospital. The new regulation 9(9) defines "the relevant period" as the period of validity of the pre-payment certificate excluding the month in respect of which an application under paragraph (6) may be made. The new regulation 9(10) provides that, where a person with a pre-payment certificate valid for 12 months becomes exempt from liability to pay charges or becomes entitled to remission of charges during the relevant period defined in paragraph (12), an application for a partial refund may be made. The new regulation 9(12) defines "the relevant period" as the period of 3 months immediately following the month in respect of which an application under paragraph (6) may be made.

11. The Committee asked the Department of Health to explain the meaning of the italicised words and, if the intention was to refer to the period beginning one month after the pre-payment certificate became valid and ending on its expiry, why paragraphs (9) and (12) do not say this. The Department, in its memorandum printed in Appendix 4, states that the phrase refers to the month in which an event listed in regulation 9(6) must occur for an application for a full refund to be made, namely the first month of the certificate's validity. The Department accepts that the drafting could have been clearer and undertakes to make clarifying amendments when a suitable opportunity arises. In the Committee's view, the drafting is not simply unclear: it is defective. Regulation 9(6) does not provide for an application to be made in a respect of a month, or any other period. It provides for an application for a full refund where a specified event occurs within one month of the certificate becoming valid. The relevant period for the purposes of the new regulation 9(7) ought to have been expressed as the period beginning one month after the certificate became valid and ending on the expiry of the certificate, and for the purposes of regulation 9(10) the period of 3 months beginning one month after the certificate became valid. The Committee therefore reports new regulation 9(9) and 9(12), inserted by regulation 7(3), for defective drafting.

12. The second sentence of the third paragraph of the Explanatory Note to the Regulations states that regulation 7 "extends the period of a pre-payment certificate for which a refund may be claimed on the death of the holder to the full months unexpired on that death". The third sentence states that regulation 7 "extends the period (from one month to 4 months) in respect of which a refund may be claimed when the holder of a 12 month pre-payment certificate becomes entitled to exemption from or remission of prescription charges". The Committee asked the Department to explain how the amendments made by regulation 7 have the effect attributed to them by the Explanatory Note. The Department, in its memorandum, states that it intends to alter the second sentence of the third paragraph of the Note, but the proposed wording appears not to be that intended as it seems to duplicate the third sentence. In the Committee's view, the Explanatory Note to the Regulations gives a misleading impression, in that it implies that a refund may now be claimed in respect of a greater part of the period of validity of a pre-payment certificate, whereas the effect of the amendments is to extend the period during which the occurrence of an event will enable a refund - but a partial refund only - to be claimed. The Committee therefore reports the Regulations on the ground that the Explanatory Note is defectively drafted.

The Public Processions (Northern Ireland) Act 1998 (Accounts and Audit)
Order 1998 (S.I.2001/851)
The Public Processions (Northern Ireland) Act 1998 (Accounts and Audit)
Order 2001 (S.I. 2001/852)

13. The Committee draws the attention of both Houses to these Orders on the grounds that there has been a serious failure to comply with proper procedures in respect of them and, in the case of S.I. 2001/851, a failure to conform to proper drafting practice and, in the case of S.I. 2001/852, defective drafting.

14. These Orders concern an amendment to the definition of the financial year of the Parades Commission for Northern Ireland set out in paragraph 12(5) of Schedule 1 to the Public Processions (Northern Ireland) Act 1998. Their history is set out in the Northern Ireland Office's first memorandum, which is printed in Appendix 5. In summary, S.I. 2001/851 was made on 29 December 1998 and brought into force on the same day (thereby giving it a brief, but unauthorised, retrospective effect) but no steps were taken, following its making, to lay it before Parliament or to publish it. These omissions involved breaches of section 16(4) of the 1998 Act (which effectively required the Order to be laid before Parliament) and sections 2(1) and 4(1) of the Statutory Instruments Act 1946 (which respectively required the Order, immediately after it was made, to be sent to HMSO to be registered and published and required notification to be sent to the Lord Chancellor and the Speaker that the Order had come into operation before copies of it could be laid before Parliament and explaining the reason for that). The Department wrongly assumed that its failure to lay the Order rendered the latter a nullity, and it proceeded to make a second Order (S.I. 2000/655), which the Committee reported to both Houses in its 16th Report (Session 1999-2000) as being defectively drafted. The Department, in April 2000, undertook to the Committee to make an amending Order at the earliest opportunity. The amending instrument is S.I. 2001/852. This was made on 23 February 2001 and came into force on 30 March 2001, but it was not laid before Parliament until 12 March, thereby breaching the "21 day rule" (the rule of practice whereby negative procedure instruments should be laid at least 21 days before coming into force). After making that Order the Department realised that the original Order was legally effective to amend the 1998 Act, so that the subsequent Orders, so far as they also purport to amend the Act, are defective. In its first memorandum (which is dated 12 March), the Department states its intention to revoke S.I. 2001/852 immediately - although such an order has not yet been laid before Parliament. S.I. 2001/851 has now been laid before Parliament and published, albeit without an Explanatory Note, and notifications (with apologies) have been sent to the Lord Chancellor and the Speaker. The Department expresses its deep regret for these procedural failures.

15. Despite the Department's candid explanation of its actions, the Committee felt that further enquiries were needed. It accordingly asked the Department, in relation to S.I. 2001/851, to specify what steps it had taken to prevent any recurrence of the failures which occurred in respect of that instrument, and why the instrument was published without an Explanatory Note. In its second memorandum the Department states that a procedure has been put in place to ensure that all instruments made by Ministers are routed through a single point, which has responsibility for ensuring that all the necessary steps are taken at the right time, and that relevant staff have been informed of the procedure and of their responsibility to see that it is followed. The omission of an Explanatory Note was an error made when the instrument was drafted which was not noticed when the instrument eventually came to be laid and published. The Committee welcomes the Department's remedial action, but nevertheless reports S.I. 2001/851 for the unjustifiable delay in its laying and publication and in giving the notifications required in respect of it by section 4(1) of the Statutory Instruments Act 1946, and for the failure to conform to proper drafting practice occasioned by its lack of an Explanatory Note.

16. With respect to S.I. 2001/852, the Committee asked the Department to explain the delay in bringing forward this amending instrument, given the Department's undertaking to do so at the earliest opportunity, and why the Order was laid in breach of the "21 day rule". In its second memorandum the Department accepts that it should have acted more swiftly in producing the promised amending instrument. It also states that it was only after this Order had been made that the existence of the first Order came to light. The Department then delayed laying this Order while it considered what course to take. It then sought to lay both Orders on Friday, 9 March 2001, the last date on which this Order could be laid in compliance with the 21 day rule, but due to a delivery error the Orders were not laid until the following Monday, 12 March 2001. The Committee does not find these explanations satisfactory. With regard to the breach of the 21 day rule, it is clear that once an instrument has been made it should be laid as soon as may be after its registration (see paragraph 4.21 of Statutory Instrument Practice). The Department had ample time in which to lay this Order without breaching the 21 day rule and, in the Committee's view, it should have ensured that that was done, whatever its doubts about the other related Orders. The Committee accordingly reports S.I. 2001/852 for an unjustified breach of the 21 day rule. It also reports the Order for the defective drafting acknowledged by the Department in its first memorandum. The Committee also deplores the Department's excessive delay in bringing forward this instrument, having undertaken to do so at the earliest opportunity. The Committee finds the serious procedural failings which have occurred in relation to these instruments very disturbing and trusts that the Department will be vigilant to ensure that proper practice and all applicable legislative requirements are duly observed in future.

Criminal Defence Service (Funding) Order (S.I. 2001/855)

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

18. This Order makes provision for the funding and remuneration of services provided under Part I of the Access to Justice Act 1999 as part of the Criminal Defence Service. Schedule 1 to the Order deals with the manner in which costs are to be determined and paid. Paragraph 12 of that Schedule deals with the determination of solicitor's fees and appeared to the Committee to contain a number of internal mis-references. The Committee asked the Department to comment upon these apparent errors.

19. In its memorandum printed in Appendix 6, the Department acknowledges that the paragraph does indeed contain three mis-references, and as a consequence, sub-paragraphs (12) and (13) are otiose.

20. Part 2 of Schedule 2 deals with standard fees in the Crown Court. Paragraph 1(5) of that Part of that Schedule refers to some of the sub-paragraphs of paragraph 12 to Schedule 1 which were mis-referenced. In its memorandum the Department likewise acknowledges these errors. It apologises for all the errors committed in the Order and states its intention to amend the Order accordingly when an amending Order is made in the near future. The Committee reports the Order 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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