Joint Committee on Statutory Instruments Sixteenth Report


SIXTEENTH 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 Privy Council Office in connection with the General Optical Council (Registration and Enrolment (Amendment) Rules) Order of Council 2001 (S.I. 2001/1131) is printed in Appendix 1.

Birmingham (Kitts Green and Shard End) Education Action Zone (Variation)
Order 2001 (S.I. 2001/972)

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

4. New article 9A (inserted by article 2(3)) provides that a member of the Forum may be removed from office by the Forum [(b)] in the case of a member appointed pursuant to article 4(a), "if any of the schools referred to in that paragraph are discontinued". Article 4(a) provides that membership of the Forum must include one person appointed by the governing body of each zone school unless any such governing body chooses not to make an appointment. It would appear that the intended effect of this provision is that a member who is appointed by the governing body of a zone school may be removed from office if that particular school is discontinued. However, the provision, as drafted, suggests that all the members appointed by the governing bodies of different zone schools may be removed if only one school is discontinued. The Department for Education and Employment, in a memorandum printed in Appendix 2, accept that the quoted words should have read: "if the school whose governing body appointed the member is discontinued"; and they indicate that this formulation will be used in similar future instruments. The Committee reports new article 9A(b) for defective drafting, acknowledged by the Department.

Local Authorities (Referendums) (Petitions and Directions) (England) (Amendment)
Regulations (S.I. 2001/760)

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

6. The Regulations are expressed to come into force "immediately before 1st April 2001", that is, at the last moment of 31 March. It was not clear to the Committee why this unusual commencement provision had been adopted, and why the intended effect could not have been achieved by simply specifying a particular day so that the instrument would (in accordance with sections 4(a) and 23(1) of the Interpretation Act 1978) come into force at the beginning of the particular day chosen. In a memorandum printed in Appendix 3, the Department of the Environment, Transport and the Regions state that, since local government officers are not generally familiar with the effect of the Interpretation Act, the Department decided to bring the instrument into force at the last moment of 31 March so as to avoid "any (albeit unjustified) doubt" as to when the instrument would come into force. In the Committee's view this is not an adequate reason for departing from proper legislative practice. Accordingly, the Committee reports this instrument for failure to comply with proper legislative practice.

Court of Protection (Enduring Powers of Attorney) Rules 2001 (S.I. 2001/825)

7. The Committee draws the special attention of both Houses to these Rules on the grounds that they require elucidation, are defectively drafted and make an unexpectedly limited use of the enabling power.

8. Rule 7 requires an application to register an enduring power of attorney to be lodged with the Court of Protection not later than 10 days after the date on which—

    (a)  notice has been given to the donor and every relative entitled to receive notice and every co-attorney; or

    (b)  leave has been given to dispense with the notice whichever may be later.

It was not clear to the Committee why the words "whichever may be later" had been included since, if notice had been given to every relative as envisaged by subparagraph (a) the question of the court giving leave to dispense with notice would not arise. In a memorandum printed in Appendix 4, the Lord Chancellor's Department explain that those words are needed to make it clear that the 10 day period should not begin until, in relation to the last person entitled to notice under Schedule 1 of the Enduring Powers of Attorney Act 1985, such notice has either been given or leave has been given to dispense with it. The memorandum indicates that subparagraphs (a) and 9(b) are not intended to be mutually exclusive options, and that they could both apply simultaneously because situations may arise where notice is served on some relatives but leave to dispense with notice is obtained in relation to other relatives.

9. Under rule 23(3) 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 23(1) and 24(1)), no time limit is specified within which an application must be made. The Committee asked the Department to explain within what period of time an application for an attended hearing under rule 23(3) must be made and why this was not specified. The Department explain 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 23(1) and 24(1). They undertake to consider whether a specific time limit should be introduced in relation to applications under rule 23(3) when the Rules are next amended. In the Committee's view, in the interests of certainty, and consistently with the approach in rules 23(1) and 24(1), a time limit should have been specified in relation to an application for an attended hearing under rule 23(3). The Committee reports rule 23(3) on the ground that it makes an unexpectedly limited use of the enabling power[2].

10. Rule 25(1) states that, where the court is satisfied that one of the circumstances listed in section 8(4) of the Act applies, it shall cancel the registration of the enduring power of attorney in question and send a notice to the attorney requiring him to deliver the original instrument to the court. The Department accepts that the first part of this rule effectively repeats section 8(4), but submits that the duplication is not harmful, and is useful in so far as it contains a full description of what, in this context, the court must do. The Committee does not find this explanation convincing. It is not appropriate for secondary legislation to replicate the provisions of the enabling Act. The Department could more appropriately have achieved their intention by redrafting the first part of the rule so as to indicate that the requirement to send a notice to the attorney arises where the court cancels the registration of an enduring power of attorney under section 8(4) of the Act. These observations also apply, mutatis mutandis, to rule 25(2). The Committee reports rule 25(1) and (2) for defective drafting.

11. Rule 25(1) and (2) is, in the Committee's view defectively drafted in another respect. Where the registration of an instrument has been cancelled on any of the grounds specified in section 8(4) of the Act (except paragraph (c)), section 8(6) requires the instrument to be delivered up to be cancelled, "unless the court otherwise directs". However, rule 25(1) and (2) suggests that the court would not be able to direct that the instrument need not be delivered up to be cancelled. In the response to the Committee's question on this point, the Department state that the rule is not intended to have this effect and the provision requiring the court to send a notice for the instrument to be delivered to the court is meant to be read subject to the court's power to direct otherwise under section 8(6). In the Committee's view, rule 25(1) and (2) does not adequately implement this intention. The Committee reports rule 25(1) and (2) on the ground that it is also defectively drafted in this respect.

12. In their second memorandum (also printed in Appendix 4), the Department confirm that the second part of rule 25(1) as to the delivery up of an instrument also applies in a case where the registration of an enduring power of attorney has been cancelled under section 8(4)(c) of the 1985 Act on the ground that the donor is likely to remain mentally capable. However, where the registration of an instrument has been cancelled on this ground, no indication is given in rule 25 as to what steps the court must take upon receiving it. The Department explain that in this case the court will endorse on the instrument that the registration has been cancelled, and the date of cancellation. They indicate that the court's practice is to return the original instrument to the donor if the donor so requests. The Committee reports rule 25 on the ground that it requires the elucidation provided by the Department.

The Stakeholder Pension Schemes (Amendment) (No.2) Regulations 2001 (2001/934)

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

14. Regulation 7 makes a number of amendments to regulation 11 of the Stakeholder Pension Schemes Regulations 2000. Regulation 11(7) of the principal Regulations (as amended by regulation 7(7)(a) of these Regulations) provides that it is to be a condition of the appointment of the reporting accountant for a scheme that he agrees, in the event of his resignation (including where he resigns solely or partly because he is required to do so by paragraph (7A)), to give the scheme manager or trustees written notice specifying any circumstances connected with his resignation which in his opinion significantly affect the interests of scheme members or declaring that he knows of no such circumstances. The Committee asked the Department of Social Security to explain the need for the underlined words. In its memorandum, printed in Appendix 5, the Department states that the words are included to make it clear that the requirement to give notice applies where the reporting accountant intends to resign voluntarily but is subsequently required to resign. In the Committee's view this would be the effect of regulation 7(7) without the underlined words, which in its view are otiose and misleading. It therefore reports regulation 7(7)(a) for defective drafting.

15. New regulation 11(7A)(c) (inserted by regulation 7(8)) requires the reporting accountant to give written notice of resignation immediately he is or becomes aware, or should reasonably be or become aware, that he is or has become ineligible to act. New regulation 11(7A)(e) provides that notwithstanding sub-paragraph (c) the trustees or managers of the scheme must remove the reporting accountant immediately, if he is still in place and they are or become aware, or should reasonably be or become aware, that he is ineligible to act. The Committee asked the Department, in relation to the underlined words, to explain how these provisions were meant to operate and what was the intended sense of the italicised words. The Department states that the underlined words are intended to encourage vigilance as to the possibility that the reporting accountant may be, or have become, ineligible, that the overall intention is that he should cease to be such as soon as possible after he becomes ineligible, and that the approach taken is similar to that adopted in section 28(5) of the Companies Act 1989. The Department say the italicised words are intended to avoid a conflict between sub-paragraphs (c) and (e) and remove a doubt which might otherwise arise as to whether the trustees or manager can remove the reporting accountant without first giving him the opportunity to resign. The Committee does not find these arguments convincing. A requirement on a person to act as soon as he ought to be aware of something, if at that time he is not in fact aware of it, is by definition incapable of fulfilment. Section 28(5) of the Companies Act 1989 makes no such provision. It penalises contravention of a requirement on an auditor to leave office as soon as he becomes ineligible but provides a defence to a person who did not know and had no reason to believe that he was or had become ineligible. The Department's intentions to encourage vigilance and to ensure that a reporting accountant's appointment automatically terminates as soon as he becomes ineligible require separate provision to be made. With regard to the italicised words, sub-paragraph (e) does not derogate from sub- paragraph (c), as is implied by those words, and there is clearly no conflict between those sub-paragraphs. For both these reasons the Committee reports new regulation 11(7A)(c) and (e) for defective drafting.

16. New regulation 11(9) (inserted by regulation 7(10)) provides that, where the reporting accountant resigns or is removed, the trustees or manager must appoint a replacement within one month of the date of resignation or removal, or "if earlier", as soon as is required to avoid non-compliance with certain provisions. A similar provision is added to regulation 11(8) of the principal Regulations by regulation 7(9). The Department's memorandum makes clear that the intention is to require a fresh appointment to be made as soon as is required to ensure compliance with other requirements of the Regulations and, in any case, within one month of the resignation or removal. This result is not, however, satisfactorily achieved, since it is not clear to what "if earlier" refers. The Committee therefore reports regulation 7(9) and (10) for defective drafting.

The Foot-and-Mouth Disease (Ascertainment of Value) (No.4)
Order 2001 (2001/1242)

17. The Committee draws the attention of both Houses to this Order on the grounds that it requires elucidation and is, in one respect, defectively drafted.

18. This Order replaces a similarly entitled one dealing with the valuation of animals slaughtered, or liable to be slaughtered, as a result of Foot-and-Mouth Disease. Article 2(3) provides that, if the owner of an animal does not wish to have the animal valued by a valuer, the value of the animal is the standard value set out in the Schedule to the Order. Article 2(4) provides that, where the owner of an animal decides that he wishes to have the animal valued by a valuer or expresses no wish under either paragraph of the article, the value of the animal is that determined by a valuer appointed by the Minister of Agriculture, Fisheries and Food. It was not clear to the Committee how, and within what period, the wishes of the owner were intended to be made known, and whether article 2(4) could have the effect of requiring an animal to be valued by a valuer even though the owner did not wish that, and it asked the Ministry of Agriculture, Fisheries and Food to explain. In its memorandum and attached Instruction to Foot-and-Mouth Disease Operators, printed in Appendix 6, the Department explains that as soon as the decision to slaughter has been made the owner must be offered compensation at the standard value and told of the alternative arrangements should he not wish to accept that value. Unless he indicates his acceptance of that value within the time allowed (usually twenty-four hours), the animal will be valued by a valuer.

19. Where an animal has been valued by a valuer, article 2(6) allows the owner 14 days in which to give notice that he disputes the valuation. Article 2(7) provides that, where he does so the owner may either accept the standard value or refer the question to arbitration. The Committee asked the Department within what period the owner must choose either course and what the position is if he chooses neither course. The Department's response explains that, under the Instruction to Operators, where the owner gives notice under article 2(6) he is to be offered the standard value once again. If this is rejected again, the Ministry then arrange for the matter to be referred to arbitration. The Committee reports article 2(4) and (7) as requiring the elucidation provided by the Department's memorandum.

20. The Committee also reports article 2(9), which contains a reference to "Schedule 3(1)" to the Animal Health Act 1981, for defective drafting, effectively acknowledged by the Department. The reference should be to paragraph 3(1) of Schedule 3 to that Act.


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

2  The Committee has similarly reported corresponding provisions in S.I. 2001/824: see 14th Report, Session 2000-01 (HL Paper 70, HC Paper 46-xiv) Back


 
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