Joint Committee on Statutory Instruments Thirty-Third Report



THIRTY-THIRD 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 Education and Skills in connection with the Education (QCA Levy) (Amendment) Regulations 2002 (S.I. 2002/1331) is printed in Appendix 1.
  3. GENERAL MEDICAL COUNCIL (VOLUNTARY ERASURE AND RESTORATION) REGULATIONS ORDER OF COUNCIL 2000 (S.I. 2000/2033)

    GENERAL MEDICAL COUNCIL (THE PROFESSIONAL CONDUCT COMMITTEE, THE GENERAL HEALTH COMMITTEE AND THE COMMITTEE ON PROFESSIONAL PERFORMANCE) (AMENDMENT) RULES ORDER OF COUNCIL 2000 (S.I. 2000/2034)

    GENERAL MEDICAL COUNCIL (FITNESS TO PRACTICE COMMITTEES) RULES ORDER OF COUNCIL 2000 (S.I. 2000/2051)

    GENERAL MEDICAL COUNCIL (CONSTITUTION OF INTERIM ORDERS COMMITTEE) RULES ORDER OF COUNCIL 2000 (S.I. 2000/2052)

    GENERAL MEDICAL COUNCIL (INTERIM ORDERS COMMITTEE) (PROCEDURE) RULES ORDER OF COUNCIL 2000 (S.I. 2000/2053)

    GENERAL MEDICAL COUNCIL (INTERIM ORDERS COMMITTEE) (TRANSITIONAL PROVISIONS) RULES ORDER OF COUNCIL 2000 (S.I. 2000/2054)

  4. The Committee draws the special attention of both Houses to these instruments on the ground that there have been unjustifiable delays in laying them before Parliament and in notifying the Lord Chancellor and the Speaker of the House of Commons that they came into force before they were laid.
  5. Two of these instruments (Nos. 2033 and 2034) were made on 30 June 2000 and came into force on the following day. The remainder were made on 12 July 2000 and came into force on 3 August 2000. All of them are made under the Medical Act 1983, which provides that they shall be subject to annulment by resolution of either House. But they were not laid before Parliament until 14 May 2002. The Lord Chancellor and the Speaker were notified on 13 May 2002 that the instruments had been brought into force before laying, as required by the proviso to section 4(1) of the Statutory Instruments Act 1946.
  6. In a memorandum dated 14 May 2002 printed at Appendix 2, the Department of Health and the Privy Council Office apologise for the substantial delay in laying the instruments and explain that the need to lay them was overlooked when they were made. A further memorandum dated 18 June 2002 explains how the error arose and the steps that have been taken to prevent any recurrence.
  7. The Committee is concerned that the statutory obligation to lay these instruments, which ought to have been discharged as soon as they were made, was overlooked, and that a delay of almost two years should have occurred before the error was uncovered. If proper Parliamentary scrutiny of delegated legislation is to be possible, it is vital that Departments adhere to the procedures which Parliament has laid down. It therefore expects all Departments to exercise vigilance to ensure that similar errors do not arise. The Committee reports these instruments for an unjustifiable delay in laying them before Parliament and in notifying the Lord Chancellor and the Speaker that they came into force before they were laid.
  8. TOWN AND COUNTRY PLANNING (MAJOR INFRASTRUCTURE PROJECT INQUIRIES PROCEDURE) (ENGLAND) RULES 2002 (S.I. 2002/1223)

  9. The Committee draws the special attention of both Houses to these Rules on the ground that they are defectively drafted and that, in one respect, they fail to comply with proper drafting practice.
  10. These Rules regulate the procedure to be followed in connection with local inquiries relating to major infrastructure projects in England held by the Secretary of State before he determines applications referred to him or appeals made to him. The Rules concern planning permission, listed building consent and consent for the demolition of unlisted buildings in conservation areas.
  11. Rules 4(3) and 6(2)(d) require action to be taken forthwith after the starting date and within 8 weeks of the starting date respectively. The "starting date" is defined in rule 2 as being the later of (a) the date of the Secretary of State's notice to the applicant and the local planning authority that he has received all the documents required to enable him to entertain the application or appeal and (b) the date of the Secretary of State's notice informing the applicant and the authority that an inquiry is to be held. In its 27th Report of the 1999-2000 Session, the Committee reported a similar provision in four other instruments on the ground that it constituted a failure to comply with proper drafting practice: an obligation to do something should not be imposed in a definition because a definition presupposes a substantive rule or regulation upon which that definition is based. The Office of the Deputy Prime Minister, in a memorandum printed at Appendix 3, acknowledges that there is no provision requiring the Secretary of State to give notice of receipt of documents, and repeats its view that such a provision is unnecessary as the wording of the definition of "starting date" itself makes it clear that a notice must be sent. The Committee retains its view that it is not in accordance with proper drafting practice for a substantive obligation to be imposed in a definition and is disappointed that its earlier comments have not been acted upon. It accordingly reports these Rules for failure to follow proper drafting practice.
  12. Rule 12(1) provides that the date fixed for the holding of an inquiry shall normally be not later than 8 weeks after the conclusion of the last pre-inquiry meeting. The definition of "pre-inquiry meeting" in rule 2 includes the statement that "where two or more such meetings are held references to the conclusion of a pre-inquiry meeting are references to the conclusion of the final meeting". The Department acknowledges that the word "last" in rule 12(1) is therefore "not strictly necessary", but opines that "it is nevertheless helpful". The Committee does not agree that it is helpful to include the unnecessary word in rule 12(1), particularly when it is not included in a similar provision elsewhere in the same instrument.
  13. Rule 15(1) requires a person who proposes to give evidence at an inquiry to send copies of the proof of evidence "together with any written summary" to the Secretary of State. Rule 15(2) states that no written summary shall be required where the proof of evidence contains no more than 1500 words. The Department acknowledges that there is no express provision requiring a written summary to be provided, but asserts that such a requirement is implicit in rule 15. The Committee doubts whether such a requirement can properly be inferred, given the references in rule 15 to "any" written summary. In the Committee's view the intention that a summary must be provided where the proof of evidence contains more than 1500 words is not sufficiently clearly conveyed and rule 15 is therefore defectively drafted in that respect.
  14. Rule 4(1)(b) includes an otiose reference to rule 6(2)(a)(iii), and a reference in rule 19(7) to paragraph (5) of that rule should be to paragraph (6). The Department acknowledges these errors.
  15. The Committee accordingly reports rules 4, 12, 15 and 19 for defective drafting, two instances of which are acknowledged by the Department.
  16. PRESSURE EQUIPMENT (AMENDMENT) REGULATIONS 2002

    (S.I. 2002/1267)

  17. The Committee draws the special attention of both Houses to these Regulations on the ground that they are defectively drafted.
  18. Regulation 2(1) of this instrument amends the Pressure Equipment Regulations 1999 (S.I. 1999/2001) so as to exempt from their requirements an item of pressure equipment or an assembly which is made available for the first time in the Community where two conditions are fulfilled. The first of these conditions is that the item or assembly has been manufactured within the Community or imported from a country or territory outside the Community. It appeared to the Committee that, as such items or assemblies must have been manufactured, this condition served no purpose. In a memorandum printed at Appendix 4, the Department of Trade and Industry accepts that the condition is otiose and undertakes to amend the provision when a suitable opportunity arises. The Committee accordingly reports regulation 2(1) for defective drafting, acknowledged by the Department.
  19. NATIONAL HEALTH SERVICE (COMPENSATION FOR PREMATURE RETIREMENT) REGULATIONS 2002 (S.I. 2002/1311)

  20. The Committee draws the special attention of both Houses to these Regulations on the ground that their drafting is unnecessarily obscure.
  21. These Regulations consolidate, with minor amendments, the provisions of the National Health Service (Compensation for Premature Retirement) Regulations 1981. They provide for the payment of compensation to or in respect of a person who was employed in the National Health Service in England and Wales and has prematurely retired from that service by reason of redundancy or in the interests of the efficiency of the service.
  22. Regulations 5 and 6 are respectively headed "Crediting of additional period of service" and "Calculation of compensation". Together they contain 16 numbered paragraphs and extend to almost 3 pages of the published instrument. The Committee found them difficult to understand, particularly as certain provisions in regulation 5 appeared to be concerned with the calculation of compensation and some in regulation 6 with the crediting of additional service. In a memorandum printed at Appendix 5, the Department of Health accepts that the drafting of regulation 5 could have been clearer in three respects and that paragraphs (8) to (10) of that regulation would more suitably have been included in regulation 6, and undertakes to bear in mind the points raised by the Committee when the opportunity to amend the Regulations next arises.
  23. The Committee acknowledges that regulations of this nature often need to contain detailed and complicated rules, but wishes to emphasise the desirability of their being drafted as clearly as the subject matter permits, particularly where it can be expected that they will be read by persons with no legal training, as is the case here. The Committee accordingly reports regulations 5 and 6 on the ground that their drafting is unnecessarily obscure , as 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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