Joint Committee on Statutory Instruments Third Report


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 Ministry of Agriculture, Fisheries and Food in connection with the Waddeton Fishery Order 2001 (S.I. 2001/1380) is printed in Appendix 1.

BIOCIDAL PRODUCTS REGULATIONS 2001 (S.I. 2001/880)

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

4. The Regulations implement as regards Great Britain Directive 98/8 of the European Parliament and the Council concerning the placing on the market and use of biocidal products.

5. Regulation 8(5) prohibits the use of certain biocidal products unless the product is used "in a manner which involves the rational application of a combination of physical, biological, chemical or other measures as appropriate to limit the use of biocidal products to the minimum necessary for the effective control of target organisms". Schedule 11 makes failure to comply with this duty an offence. The Committee asked the Department of the Environment, Transport and the Regions to explain how a person subject to this duty can be expected to establish, with sufficient certainty to avoid criminal liability, that he has met this requirement.

6. The Department in its memorandum, printed in Appendix 2, refers to the facts that the Directive requires the United Kingdom to prescribe that biocidal products are to be "properly used" and that the Directive defines that expression in the terms of regulation 8(5) set out above, and adds that where appropriate the United Kingdom is obliged to make provision to enforce duties imposed by directives. The Department also says that it is working with industry to produce guidance on this issue.

7. In the Committee's view it is not consistent with United Kingdom legislative practice to attach a criminal sanction to such an imprecise duty. The Department was not required to make a breach of regulation 8(5) an offence. If it wished to provide a criminal sanction for breach of the requirement that biocidal products be properly used, it should, in the Committee's view, have formulated for that purpose one or more obligations in sufficiently precise terms. The Committee, whilst welcoming the Department's intention to produce guidance (which the Committee trusts will, unlike regulation 8(5), be in plain English) notes that such guidance was apparently not available when the Regulations came into force. In any event, the Committee does not consider that guidance (which will not be an authoritative interpretation of the scope of the obligation imposed by regulation 8(5)) would have the effect of curing the lack of precision in the formulation of that provision. The Committee therefore reports regulation 8(5) for defective drafting.

8. The Committee had a similar concern over regulation 25(6). This requires the holder of an authorisation under the Regulations and a new applicant for authorisation to "take all reasonable steps to reach agreement on the sharing of information" to avoid unnecessary animal testing. Failure to comply is again made an offence. The Department's memorandum simply asserts without argument that it is appropriate to attach the sanction in this case and gives examples of two obvious failures to comply with the duty. But it gives no indication as to what (if any) further steps must be taken to avoid criminal liability. In the Committee's view, regulation 25(6) is not consistent with the United Kingdom's traditional legislative practice of precision in the formulation of criminal offences, and it reports that provision for defective drafting.

EMPLOYMENT TRIBUNALS (CONSTITUTION AND RULES OF PROCEDURE) (SCOTLAND)
REGULATIONS 2001 (S.I. 2001/1170)
EMPLOYMENT TRIBUNALS (CONSTITUTION AND RULES OF PROCEDURE)
REGULATIONS 2001 (S.I. 2001/1171)

9. The Committee draws these Regulations to the attention of both Houses on the ground that they make an unexpected use of the enabling power.

10. These Regulations re-enact with amendments similarly entitled 1993 Regulations. Rule 14(3)(a) (set out in Schedule 1 to the Regulations) sets a limit of £10,000 on the amount of expenses which a tribunal may award against a party who has acted unreasonably in bringing or conducting proceedings. The limit was previously set at £500. In view of this sharp increase, the Committee asked the Department of Trade and Industry for an explanation.

11. In the Committee's view the Department's memorandum, printed in Appendix 3, makes a convincing case for making the increase. However, in view of its magnitude, the Committee considers that it should be drawn to the attention of both Houses and reports rule 14(3)(a) accordingly.

GENERAL TEACHING COUNCIL FOR ENGLAND (DISCIPLINARY FUNCTIONS)
REGULATIONS 2001 (S.I. 2001/1268)

12. The Committee draws these Regulations to the attention of both Houses on the ground that they require elucidation.

13. These Regulations require the General Teaching Council for England to establish Investigating Committees, Professional Conduct Committees and Professional Competence Committees and set out their respective functions. Investigating Committees are to investigate cases of alleged or apparent professional misconduct or incompetence on the part of teachers registered with the Council. If the Investigating Committee decides that the teacher has a case to answer, it must refer the case to a Professional Conduct or Professional Competence Committee. Subject to what follows, where a case is referred to either of those Committees, the Committee must determine the case. Regulation 17(1) permits either of those Committees to refer cases to the other, and regulation 17(2) allows both Committees to refer a case to an Investigating Committee. We asked the Department for Education and Employment to explain the purpose of this latter provision, given that the Regulations provide for an Investigating Committee to refer a case to a Professional Conduct or Professional Competence Committee after investigating the matter and determining that the teacher has a case to answer.

14. In its memorandum, printed in Appendix 4, the Department explains that the intention is to enable a Professional Conduct or Professional Competence Committee to require further investigation of a particular aspect of a case or of new facts or issues which emerge in the course of the consideration of a case, so that the Committee can take proper account of those matters in determining the case. If a Committee could not do this, their ability to take all relevant issues into account might be inhibited, or they might have to dismiss a case which, on grounds of fairness, could not be reopened later. In the Committee's view regulation 17(2) requires the elucidation provided by the Department's memorandum and it reports that provision accordingly.

HOUSING BENEFIT (GENERAL) AMENDMENT (NO. 3) REGULATIONS 2001 (S.I. 2001/1324)
RENT OFFICERS (HOUSING BENEFIT FUNCTIONS) (AMENDMENT) ORDER 2001 (S.I. 2001/1325)
RENT OFFICERS (HOUSING BENEFIT FUNCTIONS) (SCOTLAND) (AMENDMENT)
ORDER 2001 (S.I. 2001/1326)

15. The Committee draws these Instruments to the attention of both Houses on the ground that they defectively drafted.

16. These instruments, which came into force on 2 July 2001, amend their respective parent instruments in respect of the criteria to be applied by a rent officer in determining a single room rent. New article 3A, inserted by article 3(2) of S.I. 2001/1325 and 1326, provides that a determination of a single room rent made by a rent officer before 2 July 2001 shall cease to have effect on the day before 2 July 2001 and the rent officer must make a new determination. A similar provision is contained in regulation 2(2) of S.I. 2001/1324. The Committee asked the Department of Social Security to explain why the italicised words were included and, if the provisions were intended to have a retrospective effect, what authorised such provision.

17. In its memorandum, printed in Appendix 5, the Department acknowledges that these provisions are defectively drafted and states that it is taking steps to correct them. The Committee accordingly reports these provisions for defective drafting, acknowledged by the Department.


1  
The Orders of Reference of the Committee are set out in the First Report, Session 1999-2000 (HL Paper 4; HC 47-i). Back


 
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