Joint Committee on Statutory Instruments Thirtieth Report



THIRTIETH 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. NATIONAL HEALTH SERVICE (GENERAL OPHTHALMIC SERVICES) AMENDMENT REGULATIONS 2002 (S.I. 2002/601)

  3. The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted in three respects.
  4. Regulation 4(a) of this instrument amends regulation 7B(1) of the National Health Service (General Ophthalmic Services) Regulations 1986 (S.I. 1986/975 ), which was inserted by the National Health Service (General Ophthalmic Services) Amendment (No. 2) Regulations 2001 (S.I. 2001/3739). Regulation 7B(1) permits a Health Authority to defer a decision whether to include an ophthalmic medical practitioner or optician in the ophthalmic 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 proceeedings 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, and Appendix 5 to that Report).
  5. The amendment made by regulation 4(a) 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 Committee, in its 27th Report for this Session, reported an identical provision in another instrument (S.I. 2002/558) for defective drafting. In a memorandum printed in Appendix 1, the Department accepts that regulation 4(a) is defectively drafted, and that the same errors are repeated in relation to the amendments made by regulation 4(b). It also accepts that, in new paragraph (1)(f) of regulation 7B (as substituted by regulation 4(d)), the words "appeal is successful" should have read "appeal is unsuccessful". It undertakes to correct all these errors at the first available opportunity. The Committee accordingly reports regulation 4(a), (b) and (d) for defective drafting, acknowledged by the Department.
  6. NAVAL, MILITARY AND AIR FORCES ETC. (DISABLEMENT AND DEATH) SERVICE PENSIONS AMENDMENT ORDER 2002 (S.I. 2002/792)

  7. The Committee draws the special attention of both Houses to this Order on the ground that the principal Order, which it amends, is in need of consolidation.
  8. This Order amends the principal Order of 1983 which makes provision for pensions and other awards in respect of disablement or death due to service in the armed forces. The 1983 Order has now been amended on 28 occasions. The Committee has on various occasions enquired about Departmental plans for consolidating the 1983 Order.
  9. In July 1996, in a memorandum printed as Appendix 1 to the Committee's 29th Report (Session 1995-96, the Department of Social Security indicated that it would undertake a consolidation as soon as circumstances and resources permitted. In March 1998, in response to a further question from the Committee, that Department, in its second memorandum to the Committee (printed as Appendix IV to the Committee's 28th Report (Session 1997-98 )) indicated that it was participating with the Ministry of Defence in a joint review which could have an impact on the 1983 Order, and stated: "When the position is clear, which the Department believes will be by the end of this year, the Department plans to progress work on consolidation rapidly. We fully share the view that the Order should be consolidated as soon as possible. We will try to make some progress this summer, without waiting for the outcome of the review."
  10. In its voluntary memorandum of 26 February 2001 (printed as Appendix 1 to the Committee's 12th Report (Session 2000-2001)) on an amending Order (S.I. 2001/1439) the Ministry of Defence stated that, given other priorities, "it is not yet possible to give a definite indication of when work on consolidation may be finalised and placed before the Privy Council". In relation to the present amending Order (S.I. 2002/792), the Committee asked that Department to explain, in the light of the memoranda mentioned above, what progress had been made in consolidating the 1983 Regulations. In its memorandum (printed as Appendix 2 to this Report), the Department stated that "it is not yet possible to give a clear indication when work on consolidation may be finalised and placed before the Privy Council." Since this response did not answer the question put to the Department, the Committee asked whether work on consolidation had begun and, if work had not begun, when it was expected that it might begin and what plans the Department had for completing the work. In its second memorandum (also printed at Appendix 2), the Department states that "work on consolidation has not begun and that it is not possible to give an indication of when the work might begin.".
  11. Given the background to this issue, the Committee does not consider this to be an appropriate or helpful response. It appreciates that, as indicated by the Department, resources have had to be concentrated on the legal and administrative issues arising from the transfer of responsibility for war pensions. However, it should have been possible for the Department to state whether it accepted the desirability of progressing work on consolidating the principal Order, with a general indication of whether it intended to consider beginning that work after completion of the work resulting from the transfer of responsibility for war pensions. The Committee stresses the importance of legislation being available in a readily accessible and comprehensible form. It expects the Department, in relation to future amending instruments, to keep it informed about the prospect of consolidating the 1983 Order. It draws the special attention of both Houses to the 1983 Order, which the present Order amends, on the ground that it needs to be consolidated.
  12. PERSONAL PROTECTIVE EQUIPMENT REGULATIONS 2002 (S.I. 2002/1144)

  13. The Committee draws the special attention of both Houses to these Regulations on the ground that they fail to comply with proper legislative practice in one respect, and that in another respect they are defectively drafted.
  14. Regulation 16(2) consists of a single sentence of 9 lines comprising an exception, a power and a prohibition which is subject to a further exception. The Committee asked the Department of Trade and Industry to explain why the material in it was not split up (for example, by placing the initial exception in a separate paragraph and by the use of sub-paragraphs) to assist the reader. In a memorandum printed at Appendix 3, the Department explains the intended effect of that provision, and acknowledges that the provision could have been presented in a more digestible form. It undertakes to amend the provision when a suitable opportunity arises. The Committee accordingly reports regulation 16(2) on the ground that it fails to comply with proper legislative practice, acknowledged by the Department.
  15. The Department also accepts that, in regulation 20(1) the words "will be proceeded against" should have read "may be proceeded against", and undertake to amend the provision at the next available opportunity. The Committee accordingly reports regulation 20(1) 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

 
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