Joint Committee on Statutory Instruments Thirty-Second Report


THIRTY-SECOND 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.

PRODUCTS OF ANIMAL ORIGIN (THIRD COUNTRY IMPORTS) (ENGLAND)

REGULATIONS 2002 (S.I. 2002/1227)

2. The Committee draws the special attention of both Houses to these Regulations on the ground that they make an unexpectedly limited use of the enabling power.

3. Regulation 53(1) creates a right of appeal to the Secretary of State or the Food Standards Agency on the ground that the amount of the charge paid by a person for veterinary checks to a local authority is unreasonable. If the appeal is successful, regulation 53(2) requires the local authority to recalculate the charge and repay the difference. Regulation 53(3) creates a right of appeal to an independent person on the ground that the amount of the charge paid to the Secretary of State or the Agency is unreasonable. However, no provision (corresponding to regulation 53(2)) is made in this case requiring the recipient of the charge to repay the difference if the appeal is successful. The Committee, in its Eleventh Report (Session 1996-97)), reported earlier Regulations (S.I. 1996/3124) on the ground that the absence of such a provision constituted an unexpectedly limited exercise of the enabling power. In a memorandum printed at Appendix 1, the Department for Environment, Food and Rural Affairs accepts that a provision should be included in regulation 53 for recalculation of the charge and repayment of the excess where the amount of a charge paid to the Secretary of State or the Agency is held, on appeal, to be unreasonable. It undertakes to include such a provision at the first available opportunity. The Committee accordingly reports regulation 53 on the ground that it makes an unexpectedly limited exercise of the enabling power.

NATIONAL CARE STANDARDS COMMISSION (CHILDREN'S RIGHTS DIRECTOR) REGULATIONS 2002 (S.I. 2002/1250)

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

5. Regulation 3(2) provides for the functions of the children's rights director set out in regulation 3(1)(b) to be subject to the requirements of the Care Standards Act 2000 and section 87 of the Children Act 1989. It was not clear to the Committee what requirements of the 2000 Act were contemplated and why it was necessary to make this saving for that Act and section 87 of the 1989 Act. In a memorandum printed at Appendix 2, the Department of Health explains that the contemplated provisions of the 2000 Act are sections 13, 31,32, 45 and 46, and that the saving was considered necessary so as to avoid any possible inconsistency between these provisions and the procedure for dealing with applications for registration, and the methodology for inspection of premises, to be established by the director. In relation to the saving for section 87 of the 1989 Act the Department states that this reference was included so as to ensure that the director exercises his function consistently with the powers of inspection provided by that section. In the Committee's view, the saving in regulation 3(2) for provisions of primary legislation is both unnecessary and misleading. It is unnecessary because secondary legislation is subordinate to primary legislation; and it is misleading in suggesting that, without the saving, the legal position might be otherwise. The Committee accordingly reports regulation 3(2) for defective drafting.


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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