Joint Committee on Statutory Instruments Eighth Report


EIGHTH 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 Leader of the House of Commons in connection with the Parliamentary Pensions (Amendment) (Pension Sharing) Regulations 2001 (S.I. 2001/2649) is printed in Appendix 1.

AFGHANISTAN (UNITED NATIONS SANCTIONS) (OVERSEAS TERRITORIES) ORDER 2001 (S.I. 2001/392), IRAQ (UNITED NATIONS SANCTIONS) (OVERSEAS TERRITORIES)

(AMENDMENT) ORDER 2001 (S.I. 2001/395)

 AFGHANISTAN (UNITED NATIONS SANCTIONS) ORDER 2001 (S.I. 2001/396)

 LIBERIA (UNITED NATIONS SANCTIONS) (OVERSEAS TERRITORIES) ORDER 2001 (S.I. 2001/946)

LIBERIA (UNITED NATIONS SANCTIONS) ORDER 2001 (S.I. 2001/947)

3. The Committee draws the attention of both Houses to these Orders on the ground that there was an unjustifiable delay in sending copies to the Committee and, in one case, a failure to comply with Statutory Instrument Practice.

4. S.I. 2001/392, 395 and 396 were laid before Parliament on 15 February 2001, and S.I. 2001/946 and 947 were laid on 15 March 2001, but copies were not sent to the Committee until 16 May. The Committee asked the Foreign and Commonwealth Office to explain the reason for the delay, and what steps the Department intended to take to prevent a recurrence. Additionally, S.I. 2001/395 corrects an error in a previous instrument (the Iraq (United Nations Sanctions) (Overseas Territories) Order 2000 (S.I. 2000/3242), but bore no headnote (as required by Statutory Instrument Practice) making clear that all copies of this amending Order were to be available free of charge to all known recipients of the earlier Order. The Committee therefore also asked the FCO to explain whether arrangements had been made for such copies to be made available, and, if so, to explain why the amending instrument did not bear a headnote to that effect.

5. In its memorandum, printed in Appendix 2, the Foreign and Commonwealth Office acknowledges that there was an oversight which resulted in delays in forwarding copies of the instruments concerned to the Committee. They promise that "in future, copies will be sent immediately upon receipt from the Stationery Office". We remind the FCO, and all other Departments, that instruments should be sent to the Committee as soon as they are laid before Parliament, and we report the Orders for an unjustifiable delay in doing so on this occasion.

6. In respect of S.I. 2001/395, the FCO told us in its memorandum that the instrument had not been issued free of charge, and that this had been corrected "by the addition of a headnote in accordance with paragraph 3.24 and 3.25 of the [sic] Statutory Instrument Practice". No mention was made of whether arrangements had now been made for free copies to be issued. Paragraph 3.24 of Statutory Instrument Practice makes it clear that, if an instrument is found to be defective, and the defect requires the substitution of a new instrument, copies of this new instrument are to be made available free of charge to those who have bought or who subsequently buy the defective instrument. Paragraph 3.25 indicates that a headnote should be included on the amending instrument indicating that this procedure is being followed. We have now received oral assurances from the Foreign and Commonwealth Office that the necessary arrangements have been put in place for free copies to be made available. We nevertheless report the Order for a failure, at the time of publication of the instrument, to comply with proper statutory instrument practice.

FINANCIAL SERVICES AND MARKETS ACT 2000 (MUTUAL SOCIETIES)

ORDER 2001 (S.I. 2001/2617)

7. The Committee draws the special attention of both Houses to this Order on the ground that, in one respect, there is doubt as to its vires.

8. The Order provides for the transfer to the Financial Services Authority or to the Treasury of functions of the Friendly Societies Commission, the Building Societies Commission and the Registry of Friendly Societies. Article 8(2) applies where the Order amends primary legislation to substitute the Treasury or the Authority for an existing regulator in a provision conferring a power to make rules, regulations or orders or to give directions. Although the amendments do not come into force - and the powers do not therefore arise - until commencement, article 8(2) allows for the early exercise of the transferred powers, so that the rules, regulations etc. may come into force at the same time as the amendments. Section 426(2)(a) of the Act allows an order to enable a person by whom powers will become exercisable to take steps 'which are necessary as a preliminary to the exercise of those powers'. But it does not authorise a provision enabling the actual exercise of the powers. The Committee therefore asked the Treasury to identify the provision of the Financial Services and Markets Act 2000 which authorises this anticipatory power to be conferred and whether reliance was being placed on section 426(2)(a).

9. In a memorandum, which is printed in Appendix 3, the Department submits that article 8(2) is authorised by section 428(3) of the Act, which authorises the making of incidental, supplemental and transitional provision, in connection with either the transfers of functions made by the Order or, alternatively, the power in section 427(3)(a) to confer functions on the Authority or Treasury in a transitional order. The Committee does not find these arguments persuasive. The power in section 428(3) cannot, in the Committee's view, be interpreted as conferring such an exceptional power as that sought to be conferred by article 8(2); and the additional supplemental and transitional powers referred to in the Department's memorandum do not, in the Committee's view, assist. This conclusion seems to the Committee to be supported by the detailed and extensive supplemental powers conferred by sections 426 and 427, and in particular section 426(2)(a), to which, the Committee notes, the Department makes no reference in its memorandum. The Committee therefore reports article 8(2) as being of doubtful vires.

INCOME SUPPORT (GENERAL) (STANDARD INTEREST RATE AMENDMENT) (NO. 2)

REGULATIONS 2001 (S.I. 2001/2676)

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

11. Regulation 3 provides for the earlier 2001 Regulations to be revoked with the saving that they are to continue to have effect until "the day before" the first day of the relevant benefit week. In a memorandum printed in Appendix 4, the Department for Work and Pensions confirm that it is intended that the revoked Regulations should continue to have effect on the day before the first day of the benefit week, and that accordingly the quoted words should have been omitted. The Department state that the present Regulations will shortly be revoked by regulations which make a further change to the standard interest rate, and that the saving provision in the new Regulations will be drafted in clearer terms. The Committee reports Regulation 3 on the ground that it is defectively drafted, as acknowledged by the Department.

FINANCIAL SERVICES AND MARKETS ACT 2000 (LAW APPLICABLE TO

CONTRACTS OF INSURANCE) REGULATIONS 2001 (S.I. 2001/2635)

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

13. Regulation 3(2)(c)(iii) provides that Part II of the Regulations applies to certain contracts of insurance entered into by a friendly society with the modification that regulation 7 applies as if for the words "the 1990 Act is deemed to apply" there were substituted the words "the general rules of private international law of that part of the United Kingdom concerning contractual obligations apply". However, the words "the 1990 Act is deemed to apply" do not appear in regulation 7; the relevant words are "the 1990 Act is to be treated as applying". Further, even assuming that the words "the 1990 Act is deemed to apply" in regulation 3(2)(c)(iii) should have read "the 1990 Act is to be treated as applying", the modification to regulation 7(1) would read as follows: "Subject to the preceding provisions of this Part, the general rules of private international law of that part of the United Kingdom concerning contractual obligations apply to the contract for the purposes of determining the applicable law.". It is not clear what "that part" refers to, since there is no earlier reference to a part of the United Kingdom. In a memorandum printed in Appendix 5, the Treasury accept that the drafting of regulation 3(2)(c)(iii) and regulation 7 do not match up, and indicate that they will amend the Regulations before they come into force to correct these errors. The Committee reports regulation 3(2)(c)(iii) for defective drafting, acknowledged by the Department.

CENTRAL COUNCIL FOR EDUCATION AND TRAINING IN SOCIAL WORK

  (TRANSFER SCHEME) ORDER 2001 (S.I. 2001/2561)

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

15. Article 5 provides for the transfer of obligations of the Central Council for Education and Training in Social Work to new bodies established in the United Kingdom. Paragraph 2(b) provides that any grant awarded but not made by the Central Council is to be treated as awarded by the relevant new body who must make the grant in accordance with and subject to the conditions of the award and must pay any travelling and other allowances which would have been payable by the Central Council. Paragraph (3)(a) provides that this obligation of the new body is to cease if there is a "relevant change" in the circumstances of the body or individual to whom the grant is made. It was not clear to the Committee what changes would be regarded as relevant, and why no guidance was provided on this matter. In a memorandum printed in Appendix 6, the Department explain that the changes contemplated are any change in the circumstances which might affect the basis on which the grant was awarded and they provide an example of a relevant change. They state that, since the relevance of a change in the circumstances of the body or individual is a question of fact for the new body to determine, it was not considered necessary for the Order to provide guidance for this purpose. The Committee considers that, in the interests of certainty and clarity, and in accordance with what is intended, article 5 should have expressly indicated that a relevant change in the circumstances of a body or individual is one which might affect the basis on which the grant was awarded. In the Committee's view, failure to provide this clarification constitutes defective drafting, and it so reports article 5 to both Houses.

JOBSEEKER'S ALLOWANCE (MEMBERS OF THE FORCES)

  (JOINT CLAIMS: CONSEQUENTIAL AMENDMENTS) REGULATIONS

  (NORTHERN IRELAND) 2001 (S.I. 2001/998)

16. The Committee draws the special attention of both Houses to these Regulations for an unjustifiable breach of the 21 day rule.

17. The Regulations were laid before Parliament on 16 March 2001 and came into force three days later on 19 March 2001. The 21 day rule was therefore breached. In a memorandum printed in Appendix 7, the Northern Ireland Office state that the reason for this breach was that there was some confusion between the Northern Ireland Office and the Department for Social Development as to which department was responsible for processing the Regulations. In response to the Committee's invitation to amplify this explanation, the Home Office, on behalf of the Northern Ireland Office, state that "it might be more accurate to say that the misunderstanding between the two Departments was a disagreement between them as to who was responsible". The Committee does not regard this to be an acceptable justification for breaking the rule, and accordingly reports the Regulations for an unjustifiable breach of the 21 day rule. The Committee notes that there has been an unacceptable delay in responding to the Committee's question and reminds Departments of the need to respond within the period requested by the Committee.


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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