Joint Committee on Statutory Instruments Eleventh Report


ELEVENTH 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 Environment, Food and Rural Affairs in connection with the Energy Efficiency (Ballasts for Fluorescent Lighting) Regulations 2001 (S.I. 2001/3316), together with the amended Explanatory Note to which it refers, is printed in Appendix 1.

3.A memorandum from the Department for Transport, Local Government and the Regions in connection with the Motor Vehicles (Tests) (Amendment) (No. 2) Regulations 2001 (S.I. 2001/3330) is printed in Appendix 2.

RADIATION (EMERGENCY PREPAREDNESS AND PUBLIC INFORMATION) REGULATIONS 2001 (S.I. 2001/2975)

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

5.Regulation 3(1) provides that, subject to regulation 17, the Regulations apply to specified kinds of work with ionising radiation. The Committee was unable to see how regulation 17 (which requires local authorities to prepare and keep up to date arrangements to supply information to the public in the event of a radiation emergency) limits the general effect of regulation 3(1). In its first memorandum, printed at Appendix 3, the Department of Trade and Industry states that regulation 17 is intended to apply to any radiation emergency, whether or not arising from work with ionising radiation. In the Committee's view this intention is not clearly conveyed by regulation 3(1), whose wording implies that regulation 17 narrows the scope of the Regulations, as defined by regulation 3. The position would be made clear if regulation 3 defined the circumstances to which the Regulations, with the exception of regulation 17, apply. The Committee therefore reports regulation 3(1) for defective drafting.

6.Regulation 18 is headed "modifications relating to the Ministry of Defence, etc". Paragraph (2) of that regulation permits the Secretary of State for Defence, in the interests of national security, by a certificate in writing to exempt (among others) Her Majesty's Forces, or any person engaged in work with ionising radiation for or on behalf of the Secretary of State for Defence, from all or any of the requirements of the Regulations. Paragraph (3) states:

"The requirements of regulation 14 shall not have effect to the extent that this regulation would in the opinion of the Secretary of State for Defence be against the interests of national security".

7.The Committee had a number of concerns about this paragraph. The words "this regulation" properly refer to regulation 18 itself but, as the Department explains in its first memorandum, were intended to refer to regulation 14. Also, it is not regulation 14 itself which could be against the interests of national security, but compliance with its requirements. The provision is defectively drafted in these respects.

8.More importantly, regulation 14 imposes duties on employers who control premises where radioactive substances are present or who are engaged in transporting such substances. It was not clear to the Committee how such employers could be expected to know whether, and if so to what extent, the Secretary of State for Defence had formed the opinion that the requirements of that regulation should not apply. In its first memorandum the Department states that the circumstances which, and the classes of people who, would be covered by any such disapplication will be set out in internal Ministry of Defence documentation to which those personnel have access. The Department did not, however, explain how regulation 18(3) would work in relation to persons other than the armed forces or employers carrying on activities under the auspices of the Ministry of Defence.

9.In a further memorandum, also printed at Appendix 3, the Department state that the power in regulation 18(3) is intended to be applied only in relation to certain members of Her Majesty's Forces, accepts that the drafting of the provision goes wider than this, and undertakes to make an appropriate amendment at the earliest available opportunity. The Committee therefore reports regulation 18(3) for defective drafting, acknowledged in part by the Department.

10.Regulation 19 applies enforcement provisions of the Health and Safety at Work etc. Act 1974 to regulation 21. That regulation states: "The Regulations referred to in Schedule 11 shall be amended in accordance with the provisions of that Schedule." The Committee did not understand how the enforcement provisions of the 1974 Act could apply to regulation 21. In its first memorandum the Department states that, as that regulation (so far as it amends the Ionising Radiations Regulations 1999) is made under section 2(2) of the European Communities Act 1972 and not the 1974 Act, regulation 19 allows the amended provisions of the 1999 Regulations to be enforced as if made under the 1974 Act. The Committee does not agree with the Department's analysis. As regulation 21 does no more than amend other instruments it is not possible for its provisions to be enforced under the 1974 Act. To apply the enforcement provisions of that Act to the 1999 Regulations an appropriate provision should be inserted in those Regulations - as indeed is done by paragraph 5 of Schedule 11 to this instrument. The Committee therefore reports regulation 19 for defective drafting.

SOCIAL SECURITY (NOTIFICATION OF CHANGE OF CIRCUMSTANCES) REGULATIONS 2001 (S.I. 2001/3252)

11.The Committee draws the special attention of both Houses to these Regulations on the ground that there has been a failure to comply with Statutory Instrument Practice in respect of them.

12.These Regulations, which are subject to annulment by resolution of either House, were made on 26 September, laid before Parliament on 2 October, and came into force on 18 October. There was therefore a contravention of the 21 day rule contained in paragraph 5.21 of Statutory Instrument Practice, which requires that instruments subject to negative procedure should normally not be brought into force until 21 days after laying. No explanation for this breach was provided to the Committee, as is required by paragraph 5.22 of Statutory Instrument Practice. In a memorandum printed at Appendix 4, the Department for Work and Pensions explain that the failure to comply with the 21 day rule was an error, that insufficient time was left for re-printing the Regulations before laying them, and that although the Regulations could have been laid in typescript this, inadvertently, was not done. The consequent breach of the 21 day rule and the need to inform the Committee were overlooked.

13.The Committee accordingly reports these Regulations for an unjustified breach of the 21 day rule.

LOCAL AUTHORITIES (GOODS AND SERVICES) (PUBLIC BODIES) (ENGLAND) (NO. 4) ORDER 2001 (S.I. 2001/3347)

14.The Committee draws the special attention of both Houses to this Order on the ground that there has been a failure to comply with Statutory Instrument Practice in respect of it.

15.This Order, which is subject to annulment by resolution of either House, was made on 4 October, laid before Parliament on 11 October, and came into force on 25 October. There was therefore a contravention of the 21 day rule contained in paragraph 5.21 of Statutory Instrument Practice, which requires that instruments subject to negative procedure should normally not be brought into force until 21 days after laying. No explanation for this breach was provided to the Committee, as is required by paragraph 5.22 of Statutory Instrument Practice. In a memorandum printed at Appendix 5, the Department for Transport, Local Government and the Regions explain that it did not intend to break the 21 day rule, and that owing to an error the Order contained an earlier commencement date than was intended. The Department apologises for the error and for its failure to explain the breach to the Committee.

16.The Committee accordingly reports the Order for an unjustified breach of the 21 day rule.

POLICE TRAINEE REGULATIONS (NORTHERN IRELAND) 2001 (S.R. 2001/369)

  17.The Committee draws the special attention of both Houses to these Regulations on the grounds that they fail to comply with proper drafting practice and are defectively drafted.

18.Regulation 10(5) consists of a single sentence of 10 lines dealing with two issues: the duty of the Northern Ireland Policing Board to determine an appeal made to it and notify the result to the appellant, and the right of an unsuccessful appellant to refer the matter to the Secretary of State and the consequences of such a reference being made. The Committee considered this to be an unnecessarily long and complex provision, and asked the Northern Ireland Department why these two matters were not dealt with in separate paragraphs to assist the reader. In a memorandum printed at Appendix 6, the Department accepts that the provision could have been drafted in a more digestible manner, but states that it has sought to make identical provision to that contained in the Royal Ulster Constabulary Regulations 1996, which it is currently reviewing.

19.The present Regulations are also defectively drafted in six respects.

  • Regulation 10(1) requires disclosure of any existing or proposed business interest of a police trainee "or a relative included in his family", and regulation 10(8) defines a relative as including his spouse, parent, son, daughter, brother or sister, but does not say who is not included.

  • Regulation 14(1) defines "expected date of birth" for the purposes of that regulation, but the expression is not used there, although it is used without definition in regulation 20.

  • Regulation 14(4) refers to a certificate "produced under paragraph (3)", but paragraph (3) deals only with the case where the person requested to produce a certificate fails to do so.

  • Regulation 14(7) states that, subject to specified provisions, maternity leave shall continue until the last day of the "maternity leave". This should read "maternity period".

  • Regulation 25(1)(b) provides that a police trainee who incurs certain medical charges may be reimbursed the charges if they are incurred by reason of an injury which "in the opinion of the Chief Constable (i) would not have been received had the trainee not been known to be a police trainee or (ii) is an injury to which [sub-]paragraph (i) may apply, and should be treated as one to which [sub-]paragraph (ii) does apply". The Department acknowledges that the final reference to sub-paragraph (ii) is erroneous, but does not acknowledge that sub-paragraph (ii) fails properly to express the intended meaning. It should have referred to an injury which may be, and should be, treated as being one described in sub-paragraph (i).

20.The Department indicates that most of the errors identified in this report are also to be found in the 1996 Regulations. With one exception, it undertakes to correct the 1996 Regulations in the course of its review of them and to correct these Regulations at the earliest opportunity. But, as regards the definition of "relative" in regulation 10(8), the Department undertakes only to consider the Committee's concern. In the Committee's view the meaning of "relative" in both Regulations needs to be made clear, and it urges the Department to make appropriate amendments.

21.The Committee accordingly reports regulation 10(5) for failing to comply with proper drafting practice, as acknowledged by the Department, and reports the provisions enumerated above for defective drafting, in all but one case 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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