Joint Committee on Statutory Instruments Sixth Report


SIXTH 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 of the Environment, Transport and the Regions in connection with the Highways Noise Payments and Movable Homes (England) (Amendment) Regulations 2001 (S.I. 2001/1803) is printed in Appendix 1.

NOISE EMISSION IN THE ENVIRONMENT BY EQUIPMENT FOR USE OUTDOORS

REGULATIONS 2001 (S.I. 2001/1701)

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

4. Regulation 19(2) prescribes the penalty for an offence under paragraph "11(1) or (2)" of Schedule 13. In a memorandum printed in Appendix 2, the Department of Trade and Industry accept that the reference should have been to paragraph 11, since that provision does not contain sub-paragraphs so numbered. They also acknowledge that the reference to "this regulation" in paragraph 7(5) of Schedule 13 should have read "this paragraph". The Department undertake to correct these errors at the earliest opportunity.

5. Accordingly, the Committee reports regulation 19(2) and paragraph 7(5) of Schedule 13 as being defectively drafted.

NORTH AND EAST DEVON PARTNERSHIP NATIONAL HEALTH SERVICE TRUST

  (ESTABLISHMENT) ORDER 2001 (S.I. 2001/1230)

6. The Committee draws the special attention of both Houses to this Order on the ground that it is defectively drafted.

7. Article 6 specifies the functions of the Trust between its establishment date and its operational date, and article 7 requires the North and East Devon Health Authority to discharge certain liabilities of the Trust incurred between those dates. Both provisions necessarily presuppose that the two dates are different. However, the Order specifies 1 April 2001 as the establishment date as well as the operational date. In a memorandum printed in Appendix 3, the Department of Health state that articles 6 and 7 were included in error. They apologise for the error, but take the view that no amendment is required. The Committee disagrees with this view, and recommends that the Order should be amended at the earliest opportunity. The reader ought not to be left in doubt as to whether articles 6 and 7 have been included in error or whether the operational date of the Trust is incorrect.

8. The Committee reports the instrument on the ground that it is defectively drafted.

NATIONAL PATIENT SAFETY AGENCY REGULATIONS 2001 (S.I. 2001/1742)

9. 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.

10. Regulation 3(1)(a) provides that a person is disqualified for appointment as the chairman or as a non-officer member of the Agency if he has within the preceding five years been convicted in the United Kingdom, the Channel Islands or the Isle of Man of any offence and has had passed on him a sentence of imprisonment for a period of not less than three months without the option of a fine. It was not clear to the Committee why the scope of this provision had been limited to a conviction in the British Islands, given that this restriction does not appear in the corresponding provision in another recent instrument (The General Social Care Council (Appointments and Procedure) Regulations 2001 (S.I. 2001/1744)) which is also made by the Secretary of State for Health. Regulation 4(1)(a) of the latter instrument refers to a conviction in the United Kingdom or elsewhere, and regulation 4(2) specifies the cases in which a conviction by a court outside the United Kingdom is to be disregarded for that purpose. In a memorandum printed in Appendix 4, the Department of Health explain that regulation 3(1)(a) of the National Patient Safety Agency Regulations is based on precedents adopted over many years in Regulations governing special health authorities established under the National Health Act 1977, and undertake to consider whether the restricted scope of that disqualification provision is still appropriate. In the Committee's view, regulation 3(1)(a) produces the following anomalous result. A person convicted of an offence in the British Islands and sentenced to, say, four months' imprisonment is automatically disqualified for appointment as the chairman or as a non-officer member for the specified period. But he would not be automatically disqualified for appointment if he was convicted of, say, a drug offence in the Republic of Ireland and sentenced to a much longer period of imprisonment. The Committee appreciates that, as indicated by the Department, in the latter case the candidate may of course be declined an appointment on the ground that he was unsuitable. However, the anomaly lies in the fact that in the latter case, unlike the case of a conviction in the British Islands, he would not be automatically disqualified for appointment. It appears to the Committee that Parliament would not have expected the power to be exercised so as to produce such a result.

11. Accordingly, the Committee reports regulation 3(1)(a) on the ground that it makes an unexpectedly limited use of the enabling power.


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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