Joint Committee on Statutory Instruments Twenty-Fifth Report


TWENTY-FIFTH 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 Work and Pensions in connection with the Occupational Pension Schemes (Minimum Funding Requirement and Miscellaneous Amendments) Regulations 2002 (S.I. 2002/380) is printed in Appendix 1.

3. A memorandum from the Department for Culture, Media and Sport in connection with the Gaming Act (Variation of Fees) (England and Wales) Order 2002 (S.I. 2002/637), the Lotteries (Gaming Board Fees) Order 2002 (S.I. 2002/639), the Gaming (Bingo) Act (Fees) (Amendment) Order 2002 (S.I. 2002/640), and the Gaming Act (Variation of Fees) (England and Wales and Scotland) Order 2002 (S.I. 2002/642) is printed in Appendix 2.

EDUCATION (QCA LEVY) REGULATIONS 2002 (S.I. 2002/435)

4. The Committee draws the special attention of both Houses to these Regulations on the ground that their drafting is defective in one respect and unnecessarily complex and obscure in another.

5. The Regulations provide for the imposition of a levy on persons awarding National Vocational Qualifications which are accredited by the Qualifications and Curriculum Authority. Regulation 5 provides for the amount of the levy to be calculated by reference to the number of leviable awards made by the awarding body, "leviable awards" being defined in regulation 2 as awards of NVQs accredited by the Authority. Regulation 5(3) provides for the levy, in certain circumstances, to be calculated by reference to the Authority's estimate of "the number of awards" made. In a memorandum printed at Appendix 3, the Department for Education and Skills acknowledges that this should read "the number of leviable awards", and undertakes to amend the provision before the first occasion on which it could apply. The Committee accordingly reports regulation 5(3) for defective drafting, acknowledged by the Department.

6. Regulation 6 deals with the case where the levy for one or more accounting periods has been estimated due to a lack of certainty as to the number of leviable awards that have been made. In essence, it requires subsequent levies to be adjusted to take account of any over- or underestimate previously made. In the Committee's view, this regulation is drafted in an unnecessarily complex and obscure manner, involving a long first paragraph and the unnecessary use of a mathematical formula with lengthy definitions of the terms used. To illustrate the point the Committee invited the Department to consider a simpler and shorter alternative. The Department accepts that the alternative draft expresses the point more simply and clearly, but would not necessarily agree that regulation 6 is drafted in an obscure way. It will, however, consider amending the provision. The Department also questions whether the Committee's draft deals with the case where more than one adjustment is needed for a single accounting period. Although it is for the Department to satisfy itself whether any express provision is required to deal with that case, the Committee doubts whether this is necessary or, if thought to be so, would require more than the addition of a few words in its draft.

7. The Committee wishes to emphasise the desirability of subordinate legislation being drafted as clearly and simply as the subject matter permits. In this case it considers that this objective was not achieved, and reports regulation 6 accordingly.

DAIRY PRODUCE QUOTAS (GENERAL PROVISIONS) REGULATIONS 2002 (S.I. 2002/458)

8. The Committee draws the special attention of both Houses to these Regulations on the ground that appropriate consultation was not undertaken before they were made.

9. Regulation 7 reconstitutes Dairy Produce Quota Tribunals, and the Schedule provides for their constitution, staffing and procedures. Section 8(1) of the Tribunals and Inquiries Act 1992 provides that the power to make procedural rules for any tribunal listed in Schedule 1 to that Act is exercisable only after consultation with the Council on Tribunals. Among the tribunals so listed are the Dairy Produce Quota Tribunal for England and Wales and the Dairy Produce Quota Tribunal for Scotland constituted under regulation 35(1) of the Dairy Produce Quotas Regulations 1991. The existence of these tribunals has been continued by a number of subsequent instruments.

10. The Department for Environment, Food and Rural Affairs, in a memorandum printed at Appendix 4, suggests that, as the tribunals established by these Regulations are not specified in Schedule 1 to the Act, the requirement to consult did not apply. It seems to the Committee, however, arguable that section 17(2) of the Interpretation Act 1978 (which provides that where an Act repeals and re-enacts, with or without amendment, a previous enactment, then any reference in any other enactment to the enactment so repealed shall be construed as a reference to the provision re-enacted) applies in this case, even though the revocation and re-enactment occur in separate instruments.

11. In any event, the Department acknowledges that it is desirable for the Council to be consulted in cases where tribunals are affected in circumstances not falling within section 8, and states that it intends to invite the Council to consider the procedures set out in these Regulations. The Department also undertakes to consider whether the tribunals reconstituted by regulation 7 should be added to Schedule 1 to the 1992 Act.

12. The Committee agrees that consultation would have been desirable in this case and accordingly reports these Regulations on the ground that no such consultation took place.


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


 
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