Joint Committee on Statutory Instruments Twenty-Fourth Report


TWENTY-FOURTH 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 Department for Transport, Local Government and the Regions in connection with the Public Service Vehicles (Conditions of Fitness, Equipment, Use and Certification) (Amendment) Regulations 2002 (S.I. 2002/335) is printed in Appendix 1. This is the third instance in recent weeks of the copies of instruments sent to the Committee not being identical to those laid before Parliament.[2] We trust that Departments will not require reminding again of the necessity of ensuring that the proper procedures are followed in this regard.

SOCIAL FUND MATERNITY AND FUNERAL EXPENSES (GENERAL) AMENDMENT REGULATIONS 2002 (S.I. 2002/79)

3. The Committee draws the special attention of both Houses to these Regulations on the ground that they require elucidation.

4. These Regulations amend the similarly entitled principal Regulations by increasing the amount of a Sure Start Maternity Grant from £300 to £500 from 31 March 2002. By way of transitional provisions -

  • paragraph (1) of regulation 3 provides that, subject to paragraph (2), where the expected date of confinement (or other relevant event) is before 16 June 2002, the increase does not apply;

  • paragraph (2) provides that, subject to paragraph (3), where a grant is claimed before 16 June 2002 in respect of a child born on or after that date the increase applies;

  • paragraph (3) provides that where a decision is made in a case to which paragraph (2) applies on the basis that the amount of grant is £300 that decision may be revised under section 9 of the Social Security Act 1998 within 13 months of the date of the decision or of an application for its revision.

5. It was not clear to the Committee how paragraph (3) qualified paragraph (2) (and therefore why the latter was expressed to be subject to the former) nor how a decision in a case to which paragraph (2) applies could properly determine a grant of £300, as envisaged by paragraph (3).

6. In a memorandum printed in Appendix 2, the Department for Work and Pensions explains that under the Social Security (Claims and Payments) Regulations 1987 a grant must be claimed within the period beginning 11 weeks before the first day of the expected week of confinement and ending 3 months after the actual date of confinement. Where a claim is made prior to the date of birth information as to the expected date of confinement will be required in support of the claim and a decision made accordingly. The actual date of birth, however, will often be later than the expected date. Thus, where a claim is made on the basis of an expected date falling before 16 June 2002, a grant at the existing rate will be awarded. If, however, the actual date of birth falls after that date, paragraph (3) provides for the decision to be revised to allow the increased rate to be paid, subject to the qualifications in paragraph (3) that this is done within 13 months of the decision (or of an application for its revision) and any payment already made is offset against the amount awarded under the revised decision. The Committee reports regulation 3 as requiring the elucidation provided by the Department's memorandum.

FOOD (STAR ANISE FROM THIRD COUNTRIES) (EMERGENCY CONTROL) (ENGLAND) ORDER 2002 (S.I. 2002/334)

7. The Committee draws the special attention of both Houses to this Order on the grounds that it is defectively drafted in one respect, and in another respect makes an unexpectedly limited use of the enabling power.

8. Article 3(1) of this Order prohibits a person from importing into England any Star Anise for human consumption which has been consigned from a country which is not a member State, except in accordance with the conditions in Article 1.1 and the second sentence of Article 1.2 of the Commission Decision. That sentence requires Member States to ensure that the importers are obliged to give prior notice to the competent authorities at the point of entry into the Community specifying the amount, nature and estimated time of arrival of the consignment. Since the Order does not in terms specify the competent authority in England for this purpose, the Committee asked the Food Standards Agency to explain who is the competent authority and why this is not specified in the Order. In a memorandum printed in Appendix 3, the Agency explains that the Order was drafted on the assumption that it would be understood that the competent authority for the purposes of the Commission Decision is the food authority under the Imported Food Regulations 1997 (S.I. 1997/2537). Those Regulations impose controls on the import of certain foods (namely foods of non-animal origin not in free circulation within the Community) and provide for each "food authority" to enforce and execute the Regulations within its area: in England, the food authorities are port health authorities or, where none, the relevant local authority. However, the Agency accepts that the Order should have expressly identified the competent authority, and indicate that the Order will be amended. In the Committee's view, the failure to include an express provision in the Order to identify the competent authority constitutes defective drafting, and it reports accordingly.

9. Article 5(1) lists the provisions of the Food Safety Act 1990 which are to apply for the purposes of the Order. In contrast to a similar provision in another instrument (S.I. 2002/333), article 5(1) does not mention section 36 which makes provision for offences by bodies corporate. The Agency accepts the desirability of including a reference to section 36 in article 5(1) to ensure that the ability to prosecute directors and managers of companies, as well as the company, is the same as in other areas of food law. The Committee therefore reports article 5(1) on the ground that it makes an unexpectedly limited use of the enabling power.

DISEASES OF FISH (CONTROL) (AMENDMENT) (ENGLAND AND WALES) REGULATIONS 2002 (S.I. 2002/284)

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

11. New regulation 15(1) (as substituted by paragraph 7 of the Schedule) provides that any person (other than the Secretary of State or the National Assembly for Wales) contravening any requirement imposed on him by or under these Regulations shall be guilty of an offence. The Committee asked the Department for Environment, Food and Rural Affairs to explain the need for the italicised words and the basis of the assumption that without those words the Secretary of State or the National Assembly for Wales could be found guilty of an offence. In a memorandum printed in Appendix 4, the Department explains that the reason for including the words was to make it clear that the offence provision in regulation 15 would not apply to the Secretary of State or the National Assembly for Wales for breach of the requirement to serve a notice imposed by new regulation 5 (as read with new regulation 2(6)). It concedes, however, that it is "unlikely on balance" that the omission of the words in question would lead to the Secretary of State or the National Assembly for Wales being found guilty of an offence for failure to serve a notice. In the Committee's view, this saving is unnecessary and misleading. Since judicial review would be the only appropriate remedy in such a case, and it is scarcely credible that without those words the Secretary of State or the National Assembly could be found guilty of an offence under these Regulations, there ought not to have been an assumption that the offence provision could apply. The Committee accordingly reports new regulation 15(1) for defective drafting.

NOTIFICATION OF MARKETING OF FOOD FOR PARTICULAR NUTRITIONAL USES (ENGLAND AND WALES) REGULATIONS 2002 (S.I. 2002/333)

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

13. Regulation 6 provides that certain specified provisions of the Food Safety Act 1990 are to apply for the purpose of these Regulations and, unless the context otherwise requires, any reference in them to the Act or Part thereof is to be construed as a reference to these Regulations. In a memorandum printed in Appendix 5, the Food Standards Agency acknowledges that the italicised words should have been omitted, since there is no context in which a different interpretation is required. The Committee therefore reports regulation 6 for defective drafting, acknowledged by the Department.


1  
The Orders of Reference of the Committee are set out in the First Report, Session 2001-02 (HL Paper 7; HC 135-i). Back

2   See also Sixteenth and Twenty-second Reports of this Session. Back


 
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