Joint Committee on Statutory Instruments Twenty-Seventh Report


APPENDIX 1

ENVIRONMENTAL PROTECTION (CONTROLS ON OZONE-DEPLETING SUBSTANCES) REGULATIONS 2002 (S.I. 2002/528)

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

4. Regulation 5 of this instrument prohibits the importation of certain substances and products. Regulation 5(4) provides that section 50 of the Customs and Excise Management Act 1979 shall have effect in relation to the landing or unloading of any those substances or products imported in contravention of a prohibition, "but proceedings under that section shall not be taken in relation to any authorised officer or authorised person who is exercising any of the powers prescribed in regulation 9 for the purpose of carrying these Regulations into effect".

5. Section 50 of the 1979 Act makes it an offence for any person to land or unload goods with intent to evade a prohibition on importation, landing or unloading. Given that an authorised person or officer exercising powers for the purposes of the Regulations would not be acting with such an intent, the Committee asked the Department for Environment, Food and Rural Affairs to explain the purpose of the italicised words.

6. In a memorandum printed at Appendix 2, the Department accepts that the words are superfluous and undertakes to remove them when the Regulations are next amended. The Committee accordingly reports regulation 5(4) for defective drafting, acknowledged by the Department.

NATIONAL HEALTH SERVICE (GENERAL DENTAL SERVICES) AMENDMENT REGULATIONS 2002 (S.I. 2002/558)

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

8. Regulation 5 of this instrument amends regulation 5ZB(1) of the National Health Service (General Dental Services) Regulations 1992 (S.I. 1992/661), which was inserted by the National Health Service (General Dental Services) Amendment (No.6) Regulations 2001 (S.I. 2001/3741). That provision permits a Health Authority to defer a decision whether to include a dentist in a dental list "(a) where there are legal proceedings that are criminal proceedings in the United Kingdom or, if brought elsewhere in the world, would be criminal proceedings if brought in the United Kingdom ...". The Committee cited this provision as an instance of defective drafting in its report on the 2001 Regulations (15th Report of this Session (see Appendix 5 to that Report)).

9. The amendment made by regulation 5 substitutes, for the words from "legal proceedings" to "in the United Kingdom", the words "proceedings in respect of conduct which, if it had occurred in the United Kingdom, would constitute a criminal offence". The effect of this amendment is unclear, given that the words "in the United Kingdom" appear twice in the relevant provision. In a memorandum printed at Appendix 3, the Department of Health explains that the amendment should have stipulated that the words to be replaced were those ending with "in the United Kingdom" in the second place where that expression occurs.

10. It also seemed to the Committee that however the amendment is read its effect is to remove the power to defer a decision where proceedings are brought in the United Kingdom, and doubted whether this was intended. The Department confirms that the amendment does not have the desired effect. The intention was that the provision should apply where there are proceedings in respect of conduct which occurred anywhere in the world, but the effect of the amendment is to apply it only where there are proceedings in respect of conduct which occurred outside the United Kingdom. The Department undertakes to amend the 1992 Regulations, and similar provisions in other instruments, at the earliest opportunity.

11. The Committee is concerned to find that an amendment which is intended to rectify a defect is itself defective in a way which is more serious than the original defect. It accordingly reports regulation 5 for defective drafting, acknowledged by the Department.

NATIONAL HEALTH SERVICE PENSION SCHEME (AMENDMENT) REGULATIONS 2002 (S.I. 2002/561)

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

13. These Regulations were made on 15 March 2002 and laid before Parliament on the same date. Regulation 1(1)(a) provides that they came into force, for certain purposes, on 1 April 2001.

14. Section 12(1) of the Superannuation Act 1972 authorises the making of regulations which are framed so as to have effect from a date earlier than that on which they are made. That is not the same, however, as making regulations which come into force before they are made. Indeed it seems to the Committee that an instrument cannot come into force until it has been made, although it can then have retrospective effect where that is provided for in the instrument and authorised by the enabling legislation.

15. It is therefore arguable that the effect of regulation 1(1)(a) is to bring the relevant provisions into force as soon as the instrument was made. As this would mean that the instrument came into force before it was laid before Parliament, section 4(1) of the Statutory Instruments Act 1946 would have required notification to have been given to the Lord Chancellor and the Speaker of this fact and the reasons for it, and the Committee ought to have been provided with a memorandum explaining why it was necessary for the instrument to come into force before the expiry of 21 days after it was laid. None of these steps was taken.

16. It seemed to the Committee likely, however, that the intention was to bring the instrument into force for all purposes on 5 April 2002 but with effect as from 1 April 2001 for specified purposes. In a memorandum printed at Appendix 4, the Department of Health acknowledges that this was the intention. It thus appears that regulation 1(1) is defectively drafted. The Department has separately indicated that it is giving the notifications required by the Statutory Instruments Act 1946.

17. Paragraph 2.75 of Statutory Instrument Practice requires the Explanatory Note to an instrument which has retrospective effect to cite the authority for that. The Department acknowledges that this was not done in this case, and states that it would be happy to arrange for the Note to be amplified when the instrument is published in the Annual Volume. The Committee recommends that this is done and reports these Regulations on the grounds that regulation 1(1) is defectively drafted and the Explanatory Note is incomplete.



 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2002
Prepared 7 May 2002